Pauley v. Kelly

Terry Pauley, Gene

etc., et al. Kelly, H. John Virginia, Treasurer, West State of et al.

(No. 14036) February 20, Decided 1979. Hedges,

Daniel F. Zevnik, Peter J. Nickles and Paul A. Covington Burling, & Richard Kohn and S. David C. Long appellants. for

Chauncey Browning, Attorney General, Layton H. F. CottriU, Jr., Attorney General, appellees. Assistant for Harshbarger, Justice:1

Appellants parents are of five children who attend the County. They schools of Lincoln filed this action declaratory judgment for in Circuit Court of Kana- County wha on behalf of themselves and as class ac- tion on behalf in other students the Lincoln Coun- ty system. Defendants are the State Treasurer Auditor, and Virginia State the members of the West Superintendent State Board of Education and the State of Schools. Pauleys allege system financing pub-

The that our for Virginia’s by deny- lic schools violates West Constitution ing plaintiffs “thorough and efficient” education re- quired by XII, by denying Article and Section them equal protection They particularly law. direct us acknowledges writer The the valuable contributions his Brother, Miller, especially pro Thomas B. in the discussions about commencing 4; equal protection, 6; cedure ante at about ante development upon remand, and for issues ante at 40. oppor- secondary inequalities that exist education by markedly achievement, out-of-bal-

tunity and created facilities, person- funding, curriculum ance annual Lincoln, counties, property-poor such as nel of schools wealthy in the compared with those more counties State. education article first of our Constitution’s section

is: law, by general legislature provide, shall

“The free efficient schools.” equal protection are: mandates

The Constitution’s life, liberty, person deprived of “No shall be process property, of law ....” [Arti- without due III, 10][2] cle Section open,

“The of this shall courts him, every person, injury in his for an done reputation, person, property shall have reme or justice by law; dy and shall due course sale, delay.” [Ar without denial administered III, 17][3] ticle Section admissions, pleadings, affida- case decided on

The was No material from documents. vits statistical summary testimony moved for was offered. Plaintiffs judgment; moved to dismiss because defendants complaint of action. did not state cause 2 by in the are forbidden this Clause Invidious classifications Equal by and Due Process Clauses manner as Protection same States See Amendment to the United Constitution. the Fourteenth _ W.Va. _, 233 Calendine, S.E.2d 318 rel. v. ex Harris State Parkersburg, _ W.Va. _, (1977); City 504 237 S.E.2d v. O’Neil (1977); Linger Jennings, W.Va. S.E.2d 740 v. see also (1957). recently Appellants III, 10. We have cite Article Section III, aspects implicit equal protection in Article Section stressed City Folansbee, _ W.Va. _, in ex rel. Piccirillo 233 S.E.2d findings to the effect that then made factual The court system inadequate,4 appar- County Lincoln school findings: These are the court’s “(a) by County public brought Lincoln a class action This is individually chil- and in behalf of all other school school children County district. dren in the Lincoln school “(b) provided by facilities, The curricula and other services property great- Virginia that have wealth schools in West counties extensive, County diverse and of a er than that of Lincoln are more County. provided quality than those in Lincoln better “(c) by facilities, curricula, provided Lin- services other many Virginia County [West] Com- coln schools fail to meet Virginia prehensive Program, the West Standards Classification Secondary and/or the NCA Policies Standards. Schools “(d) County’s inadequacies Physical plant in most of the schools significant potential threats to the health are so as to constitute and welfare of students. “(e) County and withdrawal rates in Lincoln The absenteeism higher in much than such rates schools located schools are greater property counties with wealth. “(f) County students, The educational success rate of Lincoln by go the number of students who on to measured test scores or high training graduation from additional education or after obtain than that of students from counties with is much lower greater property wealth. County “(g) tests The scores of Lincoln students on standardized virtually every averages and national cate- fall below the state gory. “(h) strong, positive the amount of A correlation exists between expenditures Virginia and the achieve- in West schools educational Virginia rate of the students West ment or educational success schools. “(i) relatively property Lin- little local wealth like Counties with quality pro- County type educational cannot offer the coln property greater gram wealth since counties with local offered county may for education is of local revenue raise the amount dependent Virginia of school finance on the under the West property wealth. amount of its local government “(j) provided and Federal The funds the State disparity supplement not eliminate between local revenues do County property-poor and counties with like Lincoln counties greater property wealth in terms of the educational dollars local to them. available “(k) County special inadequacy specific area in Lincoln A County are deaf and blind children who education. Some Lincoln County in outside Lincoln must attend a residential institution provision right of one to education and the order to exercise their

ently by comparison Kanawha, with four other counties: Marshall, Brooke and Hancock. legal

Its government conclusions were that State has not created public efficient County, in schools Lincoln met but has “the constitu- tional mandate in some counties....” Also:

“[T]here has been no that evidence residing children [property-poor] those coun- necessarily poorer ties are than such children higher who reside in prop- counties with overall erty evidence, values. In the absence of such classification here has not been shown to be based on plaintiff social class or wealth class, merely but geography to be on based county lines. The nature classification category thus does fall into not of classifica- automatically tions which are considered to be suspect.” [R. 330] equal protection guarantees inapplicable. So were The court complaint, plaintiffs’ dismissed the denied summary judgment, plaintiffs motion for appealed, asserting:

“1. granted The Circuit Court have should requested plaintiffs light relief of its find- ings of fact and its of law conclusions that Lin- County inadequate coln schools are under ‘thorough and efficient’ constitutional standard Virginia. of the State of West “2. granted The Circuit Court have should requested by plaintiffs light relief of its find- ings significant disparities among exist West Virginia quality counties in the and extent provided, educational constituting services thus equal protection process violation of and due principles safeguarded Virginia the West Con- [Appellants’ stitution.” 8] Brief at twenty learning comply class for all does not disabilities with the statutory requirements Chapter 18, Article Section 1 Virginia West Code.” procedur- may a fundamental have been We note what was Apparently motion to dismiss defendants’ al error. demonstrated, plaintiffs had not granted because documents, affidavits, that admissions and other their County product system is a poor in Lincoln school they alleged. financing present school deny plaintiffs’ reason to have been sufficient This justify summary judgment, but could not motion for against them. A motion to granting a motion to dismiss sufficiency simply legal designed to test dismiss is are not complaint. held that such motions We have considering them, plaintiffs’ factual alle- favored and favorably them and consid- gations must be construed true. purposes of the motion to be John W. ered for _ Inc., __, Texaco, Lodge W.Va. Dist. Co. (1978). S.E.2d 157 opinion recognized in its memorandum

The trial court valid constitutional chal- plaintiffs had asserted that system. financing It was not present lenges to the deficient, and therefore legal theories that were their improper. motion to dismiss was by Dr. filed an affidavit that defendants It is true plaintiffs’ questioned some of T. Ranson which James consider it to allegations, the court did not but factual judgment request under summary defendants abe _ _, Co., W.Va. Chapman v. Kane Transfer (1977). so, do summa- if it had elected to Even S.E.2d inappropri- have been ry judgment would for defendants than raise affidavit did no more defendants’ ate because though that even have held material fact. We issues of summary judgment, the court can- parties for move both disputed issues of thereby dispose case where of the not Casualty Surety v. Federal In- Co. Aetna & facts exist. York, 133 S.E.2d 770 New 148 W.Va. surance Co. of evidentiary further remanded case must be The significant and far- and, there are development because involved, we it is advisable that reaching issues shall Court. We guidelines Circuit propose certain analyze applicable constitutional standards then re- identify view the role in education and State’s areas require evidentiary development judgment to allow performance State’s its role. THE CONSTITUTIONAL ISSUES

Equal Protection correctly recognized court trial federal Four- equal protection rights teenth Amendment are not seeking equality. available to children educational San Independent Rodriguez, Antonio School District v. 411 (1973).5 1, 16, properly U.S. 36 L.Ed.2d It 93 S.Ct. 1278 5 financing plan Rodriguez The school Texas was in attacked on theory much the in same as is done this case. The claim was made part expenditure that a because of the total educational came from property counties, discriminatory taxes raised in each of a class against persons residing was created those in school districts that property equalizing had tax low bases even with an and state aid substantially money per pupil wealthy formula had less than dis tricts. not, The Court 5-4 decided that education is a from federal stand- point, right subject scrutiny equal pro- a fundamental to strict for deficiencies, only required tection that therefore Texas was to system. funding show a basis rational for its educational It con- cluded that a rational basis was element of local control that property gave financing system. tax base to its school right, wrote that a Dissenters education is fundamental and con- sequently, justifying financing system, in its the state had to show compelling justify They inequities. a state interest to concluded general that failure state’s to distribute its tax funds for edu- adjust disparities in cation to a districts manner for in local property equal protection principles. tax revenues violated Rodriguez Our examination and our research this case indi- embarrasssing authority by cates an abundance and reason majority might which the have decided that education is a funda- right every Thorough mental American. See and Efficient infra Gammon, 10; Equal Protection the Law and San Antonio Independent Rodriguez, 435, School District v. 11 U. L. Val. Rev. (1977); McCarthy, Equal 443 Is the Protection Clause Still a Viable Effecting Reform,?, 159, Tool Education 6 J.L. & Ed. n. 53 at 168 (1977); Porras, Rodriguez Case—A Crossroad Public School Financing, 141, (1972); Tax 155, 26 Law. 144-54 26 U. Fla. L. Rev. (1973); compare Education, 483, Brown v. Board 347 U.S. 873, 686, (1954); L. Ed. S.Ct. 38 A.L.R.2d 1180 see also The Uni- Rights approved 10, 1948, versal Declaration Human December Assembly Nations, appears the General United which by the federal not constrained that a state is concluded standard, its own con but must examine constitutional responsibilities. It to determine its education stitution analyses other state courts. upon made relied similar (1977); Meskill, 376 A.2d 359 v. 172 Conn. Horton (1973). Cahill, 473, 303 A.2d 273 We Robinson v. 62 N.J. may interpret our own Constitution have stated that we protection than afforded require higher standards Adkins by comparable federal constitutional standards. _ W.Va. _, Leverette, S.E.2d judgment, holding the a lower court Robinson affirmed Jersey financing to be unconstitu- statute New juris- relevance to our The case has considerable tional. Jersey’s contains a diction, constitution because New equal protection an thorough efficient clause and later. mention the former section. We will equal protection and concluded The court discussed provide legislature required to was its state; system throughout efficient education fundamental, constitutional- this made education Jersey; therefore ly right mandated New strictly scrutinized funding must be educational compelling interest served a state to see if there was statutorily inequalities.6 any created everyone, right at least proclaim to be a fundamental education planet. this on presented apparently to it facts about not have did The Court very conditioned into the Union was whose admission those states constitutionally to their upon promises secure education to their Montana, Hawaii, Idaho, Arizona, Colorado, Alaska, Ne- citizens: Oklahoma, Dakota, Nevada, Mexico, Da- braska, South North New Washington Wyoming. kota, Texas, Utah, states were Several receiving grants option from the federal presented land the with upon public their admission into government the use of schools for Iowa, Kansas, Illinois, Indiana, Arkansas, Alabama, the Union: Missouri, Ohio, Oregon The Federal Minnesota, 1-8 and Wisconsin. Organic Charters, Constitution, Laws and Other Colonial State Forming Territories, States, Now or and Colonies the Heretofore 1909) (P. Thorpe ed. America The United States of 6 protection have equal which we standard This is the traditional Marion, County Education recognized Board v. Cimino _ W.Va. (1974): 485, _, 490 210 S.E.2d 680

However, place the court Robinson refused to entire equal protection reliance its test on clause to the state’s financing recognized formula, school because it there may spend unequal be instances where the state must among the or amounts various districts counties: upon hesitate to turn this the “We case State clause.[7] equal protection The is that the reason equal protection unmanageable clause if upon supply categorical it is called to answers needs, choosing area of human vast those upon single which must be a met and basis which 492, must [62 act....” N.J. at 303 A.2d at 283] say public is not to

“This education is not vital. course it Of is. Rather we stress how diffi- objective would an say cult it be to find basis to protection equal clause selects education and governmental Equal “Whether a statute action violates application Protection is a Clause determination made demanding one of two constitutional tests. more test relates to impinge upon rights statutes which sensitive and fundamental freedoms, religion speech. constitutional such as In order to uphold statute, reviewing compel- such a a court must find that a ling by the state interest is served Weber v. classification. Aetna Casualty Surety Company, 164, 1400, & U.S. 92 S.Ct. 31 L.Ed.2d 768; Shapiro Thompson, 618, 1322, U.S. 89 S.Ct. 22 L.Ed.2d 600. instances, constitutionality statute, “In all other aof chal- lenged Equal Clause, subject under Protection to the tradi- requiring tional standard the state law be shown bear some relationship legitimate purposes. rational state San Antonio In- dependent Rodriguez, District v. School U.S. S.Ct. test, L.Ed.2d 16. Under this the court must whether consider social, economic, a classification is rational one based on historic or geographical factors; whether classification bears reasonable relationship proper governmental purpose; and whether all persons equally.” within the classes established are treated applied property qualifi- We have this to strike standard down a cation City for candidates office. State ex rel. Piccirillo v. supra. Follansbee, hesitancy predicated presumption But the court’s seems on a equal protection equates equal expenditure, that with and of Equal protection, applied education, course this not true. must equality offerings results, mean an in substantive educational expenditure may no matter what be. uniformity in ex- demands inflexible statewide 495, penditure. A.2d at 284] ...” N.J. [62 approach find merit in this that avoids narrow We financing, upon that is cer- strictures education task tainly easily categorized. and not multi-faceted equal protection has used its clause on two

California financing which occasions to strike down state formulas property part tax were based on district property with low bases to receive caused districts Priest, 728, educational funds. v. 18 Cal.3d less Serrano 345, (1976); Priest, Rptr. 135 Cal. 557 P.2d 929 Serrano (1971). 601, Rptr. 487 P.2d 1241 5 Cal.3d 96 Cal. Thorough and Efficient8 (there is, sections in state constitutions Education course, specific public in the no reference education Constitution)9 according States can be classified United they reasonably may to re- to whether be considered public systems quire legislatures provide for school say specified quality, simply or systems may public school or shall be estab- uniform lished.10 extraordinary Thorough attention to the We have devoted unexplored, area Efficient Clause research because the has been guidance in other we found but heretofore unused useful states’ law about Clause. education, Kirst, & M. views of federal aid to see J. Berke For (1972); Financing Burrup, Education Aid to Education P.

Federal Pierce, Change (1974); Garms, J. Guthrie & L. in a W. Climate of Education The Economics and Politics Public School Finance: (1965); (1978); Kursh, Education H. The United States Office of (J. Aid Education Johnsen ed. Federal Shelf Reference High Implications 1941); Ford, Federal Aid to The Constitutional Education, er 1 J.L. & Educ. 513 they They grouped make state or local can whether also responsible government the manner in which for education (often financing affecting they require the state/local education education, although ignores grouping). Mas No state constitution nearly does, confining principally to Har its attention sachusetts College. vard phraseology from those state constitutions have extracted the We levels, Appen- any quality and include them in that seem not to set dix I at 54.

682 legislatures

Constitutional provide mandates thorough systems and efficient education which is the quality requirement traditional we have found11 are in Ohio, Minnesota, Maryland, Pennsylvania, New Jer- (from sey, 1970), Illinois 1870 until Virginia and West Colorado, Constitutions. Idaho require and Montana thorough systems; Arkansas, Texas, Kentucky, and Del- (until aware, (since Virginia 1971), 1970), and Illinois effi- systems.12 cient

It has been instructive to us to examine all debates in produced constitutional conventions and clauses, efficient attempting education to find defi- nitions, explanations intentions; to find whether hyperbole words were or were legal sig- meant to have may anti-extravagance “Efficient” also be an admonition. 1971, Virginia’s In changed part education clause was in to: “§ high quality 1. Public schools of to be maintained.-The General Assembly provide system public elementary shall for a of free and secondary age throughout for all schools children of school Commonwealth, and pro- shall seek to ensure that an educational gram high quality continually is established maintained. “§ quality; 2. support Standards public and local quality schools.-Standards for the several school divisions shall prescribed be determined from time to time the Board of Education, subject only by Assembly.” to revision the General Illinois’ 1970 clause is: “§ 1. GOAL-FREE SCHOOLS goal People “A fundamental of the of the State is the educational development persons capacities. of all to the limits of their provide “The State shall high quality for an efficient public educational public institutions and services. Education through secondary schools level shall be free. There such other free Assembly provides education as the General law. primary responsibility “The financing State has the sys- tem of education.” Neither of these states’ new constitutional educational clauses judicial interpretation. have had Virginia We find no evidence that performances applying Illinois courts’ their former stan precipitated particularity wording dards recently adopted People Graham, amendments. But see ex rel. Russell v. 446, (1922); Ill. Eckfeldt, 134 N.E. 57 Fiedler v. Ill. 166 N.E. (1929); County County School Board Prince Edward Grif fin, 204 Va. 133 S.E.2d 565 (as might presume every nificance one constitutional have). pronouncement produced

Our research dialogues useful in the Ohio Virginia Conventions, and West and we have included parts opinion. abbreviated in this have We also examined all the applying cases “thor- ough efficient,” “thorough” or “efficient” constitu- (or them) refusing tional apply standards decided states, the fifteen and have culled and included herein help mention of those that us find how courts have Thorough treated the and Efficient Clause. Constitutional Debates

The 1851 Ohio Constitution was the first to use the “thorough words and efficient” to describe the education system mandated to be legislature. established its VI, 2, adopted by Article Section the Ohio Constitutional 8, 1851, Convention on March was: Assembly “The General shall provi- make such sions, by otherwise, taxation or as with in- arising come fund, from the school trust will se- thorough cure a system common efficient of throughout State; [emphasis schools supplied]; religious, but no sects, or other sect or shall ever any right to, have exclusive any or control of part of State, the school funds of this [nor shall rights any conscience be in case of interfered [Emphasis original] [Report with.]” the De- of Proceedings bates and the Convention of for Ohio, Revision the Constitution the State of of 1850-51, at 843][13] This had been the third section of the Convention’s education report, which, committee’s second on Febru- ary 24, 1851, was in these words when debated Convention: Assembly

“The General provi- shall make such sions, by otherwise, as, taxation in- with the arising funds, come from the school trust will system secure and efficient of com- 13Hereinafter referred to as Ohio Debates. State, throughout place

mon schools means of instruction in the common branches education, portion year, for a suitable of each therein, within the reach all the children age capacity learning....” suitable [Ohio Debates at 698] portions February

There are of the debates about report enlightening they (though that are are avail- only verbatim): summary, able and not hoped

“MR. ARCHBOLD ... to see common advance, only schools not to meet such demands upon them, higher as are now made but to meet greater requisitions. Then the common of the future will need to be far above the common present. He wanted see perfect devised, schools as as could be and to see improve keep pace rapid it so as to with the most progress rapid the most element our social or political [Ohio constitution....” Debates at 698] [Emphasis supplied] inability poorer support areas schools with discussed, same munificence as wealthier areas was required

and when an amendment that would have six- February month school terms was offered to the 24 re- port, proponent’s responsibil- one remarks fix the state’s ity to all the children: Montgomery.

“MR. BARNET of I am in favor prescribing longest of sustaining the time for only regret common schools. I that I cannot have opportunity sustaining the to vote for common year. consider, sir, schools nine months the I the children property the are the State of of to State; duty the and that it is the the State of educate them And that the for usefulness. funds of amply the State are to educate all the sufficient State, children no man in his senses can of [Emphasis doubt....” sup- [Ohio Debates at 708] plied] explicit

There was no definition of the words “thor- ough appeared and efficient” that in the final committee report adopted. which the 1851 Ohio Convention discussion, however, by advocating tenor of the those finally adopted, the entire education section as it was goal, leaves no doubt that excellence was the rather mediocrity; public than and education of the was gov- intended to be a fundamental function of the state right ernment and a fundamental of Ohioans.

The Minnesota of Constitutional Convention 1857 was “thorough next to include and efficient” its education did, fact, apparently article. It emulate Massachu- phraseology, setts14 and Ohio without debate useful to us. Knowledge,

“Section 1. Wisdom and as well as Virtue, preservation rights are essential to the of people, and liberties of the therefore: It shall be duty Legislature of the of this to cher- ish the interests of Education in Literature and Science, general system and to establish a of Schools; encourage public private Public and promotion Agriculture, instruction for the Arts, Science, Commerce, Trade, Manufactories, History Country; and Natural adopt of the and to they may necessary all means which deem proper people and secure to the advan- tages opportunities and of Education. provision The 1780 Massachusetts intones: “Wisdom, virtue, knowledge, generally and as well as diffused among body necessary people, being preservation of the for the rights liberties; depend spreading and their and as these on opportunities advantages parts and of education in the various country, among people, and the different orders of the it shall duty legislatures magistrates, periods be the in all and future Commonwealth, this to cherish interests of literature and the sciences, them; especially university and all seminaries Cambridge, public grammar towns; schools and schools in the private public institutions, encourage and and societies rewards arts, immunities, promotion agriculture, sciences, for the com- merce, trades, manufactures, history country; and a natural principles humanity gener- to countenance and inculcate the and benevolence, charity, industry private frugality, al humor, honesty punctuality dealings; sincerity, good in their affections, generous among peo- and all social sentiments V, ple.” Chap. [Mass. II] Const. Sec. Legislature

“Section 3. The shall make such provisions, by otherwise, as, taxation or with the arising Fund, income from the School will secure thorough system and efficient of Schools Township each in the State.” Debates and [The Proceedings the Minnesota Constitutional Con- vention at 437-38] enlightening dialogue any We found no of the other conventions from which education articles with man- dates for state systems and efficient school emanated, to aid us in definition or delineation of the terms.15 proceedings Records of the acrimonious debates of the Texas Constitutional Convention of 1875 disclose that of all require states whose thorough, constitutions’ education article effi (or either) public systems, cient Texas alone had serious anti-public by expressed delegates. school sentiment Objections ranged predicated upon tax-prohibitive from those

post-Civil poverty, posited public War to those that shools to inter- parental rights. proponent fere with sacred One characterized argument by anti-public an school man to be “... more fitted for an asylum than for a constitutional convention.” [Debates in the Texas Constitutional 223] Convention 1875 at [Hereinafter Texas De- bates] delegates opposed The nineteen who free schools were called “a fogies” band majority of old report the education committee’s people.” as “a fraud disagree- [Texas on the Debates at 230-31] The appointment special ment caused reconcile, of a committee (the stifle, the conflicts report education committee had issued its minority reports). and there were two It recommended “[I]t duty Legislature shall be the of the State to establish and provision support make suitable and maintenance of an efficient free schools.” [Texas Debates at 336] speaker compact A referred to a “sacred entered into people Congress between of Texas and the of the United States;” “[T]hat the Constitution of Texas shall never be so amend- deprive any ed as to citizen or class of citizens of the United States rights privileges of the school secured the Constitution State;” promise comply said compact “A with the determined our admission into the [Texas Union.” 338] Debates at poor worldly goods, Texas in 1875 have been but she certainly any abounded in orators. We recommend the debates oration, only student of but find therein one hint of a definition of “efficiency.” speaker One remarked to establish free schools Virginia incorporate West the was third state to thorough and efficient mandate its basic law. Our proposed “Convention to frame a Constitution for the Wheeling new State of Kanawha” convened in on No- 26, 1861, vember and one week later received the first of proposed by several educational articles referred edu- its cation committee.16 report presented

The committee’s first was on Janu- ary 22, 1862, by Battelle, Gordon its chairman.17 Battelle prevailed every on crucial that issue would have diluted plan; general State-unit that would have limited expenditures by government taxation and the State for schools; given Legislature or even would have specific period grace system.18 of in which to establish a one, two, year for or three months in a [Texas would be inefficient. clause, enacted, 338] Debates at The as was: general knowledge being preser- “A diffusion of essential to the rights people, duty vation of the and liberties of the it shall be the Legislature of the of the State to establish make suitable provision support system for and maintenance of an efficient public VII, [Texas free schools.” Const. Article 1] Section Proceedings Debates and the First Constitutional Convention Virginia particularly [hereinafter Debates] West 1861-1863 in is teresting wisdom, foresight perception because it reveals proved amazingly lengthy which has accurate. There were dia logues, example, constitutionally requiring for about the merits of corporations during taxes on to be devoted to schools —debates exploitation which out-of-State owner of the wealth State’s was predicated by proponents, depressing and the effect of taxes such attracting capital prophesied by opponents. on out-of-State was currency problem newspa of the in the illustrated series by per others, articles Tom D. Miller and titled Who West Owns Virginia?, reprinted by Huntington Publishing in booklet form Company in 1975. Debates, 60-61, biography See Vol. Introduction for a brief genesis report, of Reverend Battelle. The of this and the divisions financing in the about school surfaced in Convention arguments are about Section discussed some detail (1951) Ambler, History Virginia A Education in West at 134-38. Excerpts general history Ambler about financ from of school ing Appendix in the are attached II at 59. illustrate, repartee Doddridge To note this between Stuart County and Battelle: gentleman “MR. STUART OF DODDRIDGE. The should recollect people townships every goes that when he to tax in their man The result was an article that included as its second section: Legislature provide,

‘.‘The shall as soon as practicable, for the establishment of a They and efficient of free schools. shall provide support for the appro- such schools priating thereto interest of the invested fund; proceeds forfeitures, the net of all accruing confiscations and fines to this State un- thereof; der general the laws taxation on persons property They or otherwise. shall provide raising, township, by also in each authority people thereof, proportion such a required support amount for the of free prescribes by general schools therein as shall be [Debates, laws. Vol. Ill at 881] January 16, 1872, On Virginia a second West Constitu Charleston[19]. tional Convention met in The Journal of debates, Convention contains no but recites all mo tions, reports, resolutions, committee and votes thereon. Every effort to dilute defeated; the mandate was and it will sufficiently insist at least that he shall have a school conve- children; nient to him you to accommodate his otherwise will have difficulty there. No man will want to be taxed for a school entire- ly you go general system, you out of his reach. If into this must everybody; get every accommodate Now, it within reach of man.. .. many we are not adopted situated as of these states that have this system, country where their is all smooth and cultivated and thick- ly settled.... just say “BATTELLE: There is one word I want and that is this; beg gentleman Doddridge I from and all the rest here to get out of their minds the idea that all the mountains the world Virginia. They are West That is not so. have mountains else- where; they biggest high- have some moutains of the and the system est where flourishing this school opera- has been and inis very clear, however, tion ... complaining It will never bringing every succeed in [Debates, it to man’s door.” Vol. II at 1106-1107] Virginia The first West Convention have been distinctive among any respect: constitutional conventions in this after a for mal invitation the Trustees of the Fifth Ward School in Wheel ing, apparently very proud who were facility, of their the entire 9, 1861, Convention visited the school on December to observe its operation. Debates, IVol. at 144-46. prominent was made even more than the 1863 Consti tution. education, XII, adopted Article when the

Its article on approved by April 9, the Convention on Constitution was 1872, adopted by people, fall remains essen- and that day. tially purposes unchanged for our to this The first unequivocally section is the unencumbered state- ment that: provide, by general law, legislature

“The shall thorough for a and efficient of free schools.”[20]

Thorough and Cases Efficient appellate courts,

Each of the fifteen states’ and some courts, applied federal have and/or effi- cient clauses. states,

In all the clauses have been held to be of these absolutely mandatory upon legislatures.21

They all have found the clause make education state, local, responsibility.22 rather than The entire education article other constitutional sections Appendix III at that affect education are in 63. Wellsburg, (1871); Kuhn v. Board Education 4 W.Va. 499 Moon, Kindergar Manley In re 260, (1928); v. 177 Ark. 6 S.W.2d 281 1919, Schools, In re (1893); ten School Code of 30 Del. 18 Colo. 234 County, Fenton v. Bd. Comm’rs Ada (1919); 108 A.39 Graham, People ex (1911); rel. Russell Ill. Idaho 119 P. 41 Commonwealth, City v. (1922); Ky. Louisville 446, 134 N.E. 57 134 of Annapolis, Revell v. Associ 488, (1909); (1895); 411 81 Md. 1 121 S.W. 83, Independent Dist. No. 63 v. Dist. No. ated Schools School 122 of Hudson, 135, Evers v. 254, (1913); 142 36 Mont. 92 P. Minn. N.W. 325 Hillside, (1907); Pingry Corporation Township 457, v. 46 N.J. 462 of Korns, 287, (1966); Miller v. 107 Ohio St. 140 N.E. 773 217 A.2d 868 (1938); Moseley Hayden, v. 213, Malone v. (1923); 197 A. 329 Pa. 344 Dallas, Sup’rs City (1929); Board App., 17 S.W.2d 36 Tex. Com. of of King Queen County Cox, (1931). 687, v. 155 Va. 156 S.E. 755 of 22 Wellsburg, supra; v. Education Dickinson Kuhn v. Board of of Edmondson, Florman v. 80, (1915); School 120 Ark. 178 S.W. 930 11, In re 319, (1895); No. School Code App. Dist. 6 Colo. 40 P. 469 of Indepen 1919, supra; American Nat. Bank Idaho Falls v. Joint of 9, Fiedler v. 405, (1940); dent Dist. No. School 102 P.2d 826 61 Idaho (1929); City Eckfeldt, Louisville v. Corn- 11, 335 Ill. 166 N.E. 504 of

690 legislative authority

Broad and discretion have been acknowledged,23 and courts have made for themselves guidelines testing against legislation for the clause.

Pennsylvania, Hayden, 213, v. Pa. Malone 329 197 A. (1938), only legisla- 344 said courts can decide whether thorough tion has a reasonable relation and effi- cient mandate and whether “fruits effects” im- pinge by circumscribing the article it.

Illinois, People Graham, ex Russell rel. v. 301 Ill. 446, (1922), 134 57 N.E. said courts cannot interfere un- legislature system less the creates all “which reason- agree able men must is not an efficient system, commonly generally as those terms are un- 452, Yet, Id. at derstood.” 134 N.E. at 60. Fiedler v. Eckfeldt, 11, (1929), Ill. 504 335 166 N.E. mention is made schools, open courts Illinois will enforce free to all equally.

Kentucky only question appropriate- has said it will legislation provide ness of an efficient of com- statewide, legislation mon schools if contravenes provision equal dignity. some other constitutional of Board Education Louisville v. Board Education of of of 1970). County, (Ky. 6 458 S.W.2d of Jefferson monwealth, supra; Annapolis, supra; Revell v. Associated Schools of Independent supra; 83, Dist. No. 63 v. School Dist. No. McNair v. 423, (1930); Society No. School District 87 Mont. 288 P. 188 1, Establishing City Paterson, 208, v. 89 N.J.L. Useful Manufactures of (1916); Korns, supra; Hayden, supra; 98 A. 440 Miller v. Malone v. Flory Smith, 164, v. 146 Va. S.E. 360 Wellsburg, supra; Kuhn v. Board Education Dickinson v. Edmondson, supra; Kindergarten Schools, supra; In re In re School supra; 1919, County, supra; Code Fenton v. Bd. Com’rs Ada People Graham, supra; ex Russell rel. v. Commonwealth ex rel. Norfleet, Ky. 800, (1938); Meredith v. 115 S.W.2d 353 Revell v. Annapolis, supra; City Minneapolis Board Education v. Houghton, (1930); Hudson, Minn. 233 N.W. 834 Evers v. supra; Cahill, Super. 223, (1972); Robinson v. 118 N.J. A.2d 187 King Sherman, (1922); State ex rel. v. 104 Ohio St. N.E. 625 Hayden, supra; Independent Malone v. Houston v. Gonzales School Dist., (1918); App., Flory Smith, supra. Tex. Civ. 202 S.W. 963

691 Virginia, Flory Smith, 164, 168, v. Va. 145 134 S.E. 360, (1926), 362 limited review to “the reasonableness of regulation promulgated. the To hold otherwise would be judicial opinion legislative to substitute for the will.” Legislature judge Texas holds: “The alone is to what necessary appropriate means are ... determi- [Its] final, except arbitrary nation ... is when so as to be rights of violative the of constitutional citizen.” Marrs, 383, 396, Mumme v. 31, 120 Tex. 40 S.W.2d 36 (1931). legislature And we have judge said that “to is thoroughness efficiency.” of Kuhn v. Board of (1871). Wellsburg, 499, Education 4 W.Va. 509 of jurisdictions But these have not hesitated to examine legislative performance mandate, of and we think properly so, they even as recite that courts are not con policy legislation. cerned with the wisdom or of the State ex rel. Methodist Children’s Home Association v. Board of Worthington Village Education School District of of County, (1922). 438, Franklin St. 105 Ohio 138 N.E. 865 Many recognized legislative duty courts have necessary provide power funds or to raise funds what- they delegated ever responsibil- bodies have education ity.24 particularly And we are aware of the admonition in 1871 in Wellsburg, Kuhn v. Board Education of supra: it plain, people

“From this clause intended ‘efficiency’ ‘thoroughness’ schools, adopted by legisla- of free ture, prejudiced should no wise be the want 24 _ W. Blankenship, _, ex State rel. v. Brotherton Va. 207 (1973); Black, 380, S.E.2d 421 Brennan v. Del. 34 Ch. 104 A.2d 777 (1954); County, supra; Fenton v. Bd. Com’rs Ada McIntire v. Powell, Ky. 477, (1910); 125 S.W. ex rel. Board of City Minneapolis Erickson, 216, Education v. 190 Minn. (1933); 73, rel. N.W. State ex Lien v. District No. School (1938); Mont. 76 P.2d 330 Board Education Elizabeth v. City Council, (1970); Korns, 55 N.J. 262 A.2d 881 Miller v. supra; Liberty Independent Dist., Richardson School Civ. Texas App., 22 S.W.2d 475 obligatory upon They it ample make means. support provide legislature for the of such legis- placing of the schools ... thus hands absolute,

lature, purpose, plenary, if not for that power.” 499 at [4 509] W.Va. funding required in equality not

But has been majority and efficient of states with mandated Shapiro, Supp. F. systems. McInnis v. 293 327 school (N.D. 1968), Ogelvie, v. 394 sub nom. McInnis Ill. aff'd Engelking, 793, (1969); Thompson 96 Idaho v. U.S. 322 Casey, (1975); v. 33 Pa. 537 P.2d 635 and Danson Cmwlth. (1978), 614, down attacks based on A.2d 1238 strike financing equal protection process, upon due school or Commonwealth, Ky. inequalities. City Louisville v. (1909). 488, 121 S.W. legislatures ple- that have Courts have often declared authority thorough, nary to determine bounds way This been for efficient education. has the common im- approving have intended to acts deemed to been systems, violating prove when attacked as education right.25 some constitutional other every the few we have found that on Our Court one of mandate, weight given has not extra the education occasion against have that rules. We held balanced other constitutional extending prohibition against to lo the State credit constitutional payment governments applied dis also to State local school cal (1934). Fox, 513, Berry 114 W.Va. 172 S.E. 896 tricts’ bonds. court, authority decision, by No about a divided was unfortunate. Instead, by payment cited. of local debts was state houses, also, paid majority whether for from the wrote: “The school not, permanently proceeds for remain the use of bonds or brought being.” [Id. at 172 S.E. which them into communities Apparently apprised not that district the court was local 901] responsibilities state because the districts themselves debts were State, doing they agencies work when were of the State’s moot; disapprove case but we incurred the debts. This is now responsibility overrule it to the extent it diminishes State Annapolis, Compare Md. 1 Revell v. schools. written the education mandate “stands no We have also VI, pre- higher which than the mandate” in Article Section (this appropriation be made article has since how State scribes amended). by procedure which educa- been We affirmed that constitutionally appropriated proceeds con- were to be was tional Many decisions we have reviewed reflect affirmation judicial legislative plenary power deference over education, judicially approve legislation and then be- as ing power. within that upon

We need not presented reflect the conundrum judiciary, bowing these several legis- cases —that plenariness, lative hardly branches’ ever has refused to speak approval disapproval its legislatures’ of the plenary acts.

However, stopped Nearly every courts have not there. one has legislature intervened when an act aor proceeding by board, agent legis- a local school lature, judicial is offensive to notions about what a thor- ough and efficient education is. prime is a example.

Illinois The court there re has peatedly legislative deferred to in wisdom matters edu yet, cational. disapprove And it has chosen to local boundary changes school specifically district ratified legislation, resulting not, because the boundaries were opinion, in the court’s consistent with the “efficient” system constitutionally required. school People v. Death 25, (1948). erage, 401 Ill. 81 581 N.E.2d Jersey have, course, New courts in Robinson v. Ca cases, applied judgment legislative hill their to acts con establishing thorough sidered to have fallen short a system. and efficient school judged legislatures

The Colorado court has that have power provide education, inherent and that legislature kindergartens though can establish even constitutionally age for mandated commencement Kindergarten schooling Schools, In is six. re 18 Colo. 234 (1893). compelled

Montana’s court has a local school board to only provide education to the in a two children school requisition upon appropria- trolled a based an unconstitutional tion bill was not cured and efficient mandate. Sims, (1953). 244, ex rel. v. State Trent 138 W.Va. 77 S.E.2d 122 694 73,

district, rel. v. District No. ex Lien School 223, (1938), enjoined collection Mont. 76 P.2d 330 public schools, its materials used in fees for books and County District No. Granger v. Cascade School (1972). 516, 499 P.2d 780 Mont. required Kentucky high a board of educa-

The court closing constitutionally finding after a tion to act ineffi- particular caused the school to be 1956). (Ky. Wooley Spalding, 293 S.W.2d 563 cient. v. permitting Virginia, elections about In a statute local property was needed for school boards’ real whether public purposes held because was to be unconstitutional functions. it interfered with school boards’ constitutional Allegheny County, County Howard v. Board School (1961). Va. 122 S.E.2d 891 textbooks, re required free and has Our has Court bud quired “state aid to education” in the inclusion of Cassatt, _ W.Va. _, 208 S.E.2d get. v. Vandevender _ (1974); Blankenship, rel. Brotherton State ex W.Va. _, S.E.2d approach represent to school

Two cases differences states, thorough and and dif- attacks efficient finance Casey, supra, In Danson v. the Common- ferent results. Pennsylvania challenge dismissed wealth Court of provided state subsidies certain statutes specifically statutory found that schools. court subsidy formula state- scheme, applied which uniform adapting to differences at the same time wide while taxation, by providing for local was not communities discriminatory. step system yet in con- is another

“The current tinuing legislative attention to correlate needs and fiscal formulae with local districts’ aid equalize goal capacity.... The is to educational opportunity opportunity that from and remove or dependence upon the situs status. student’s proper has maintained the nexus been Whether subsidy formula between the elements professed goal a has been source of criticism. considering “It has been held that ‘[i]n laws relating public system, to the school courts will inquire reason, wisdom, not expedien- into or cy legislative policy regard with to educa- tion, legislation but whether a has reason- thorough able relation [a to and efficient public Cases, schools]. Teachers’ Tenure Act supra, 224, 329 Pa. at A. at 352.

“Although financing all educational cases are generis sui alleged depriva- the sense that absolute, tion is relative rather than we find no discrimination, otherwise, sys- invidious a applies subsidy tem that a uniform formula statewide, adapting while at the same time to community by providing diversification for local promo- taxation. To the extent that it aids the public system, subsidy tion of a formu- la fair. To the provides extent that it no less it districts, than makes available to other school varying it is substantial. Given the interdistrict costs, educational and the uncertain nexus be- quality education, tween the cost and we can- say, law, Pennsylvania’s not a matter of that subsidy fairly substantially formula is not ensuring sys- related to and efficient tem of education.” [Footnotes omitted] [382 A.2d at 1242-1245] opinion interpreted “thorough then and effi-

cient” standard: “Although we subscribe view Arti- III, upon impose duty

cle of Section does legislature provide equal op- educational portunity to the Commonwealth’s school chil- dren, duty separate this exists apart proscription against special from the laws III, contained within Article Section we see apply no any reason a test under this section relation and substantial the different test fair from protection analysis. equal applied in We our ‘provide interpret for the do the mandate not thorough support of a and effi- maintenance system public education to serve cient require as to abso- of the Commonwealth’ needs expendi- in equality lute educational services in tures, equality rather the relative sense but Challenges predicat- adapting to local conditions. provisions have upon ed similar constitutional jurisdictions by in virtue of succeeded other jurisdictions upon placed those local in reliance determining property in either real tax base permissible level local taxation or limits of subsidies, in such manner which state against poorer reliance discriminates districts. Priest, 584, Rptr. v. Cal.3d Cal. See Serrano (1971); 601, Horton v. Mes- P.2d 1241 see also kill, supra note We find no such undue reli- 15. Pennsylvania’s grant equalization in formu- ance [Emphasis supplied] A.2d at [382 1246] la.” petition a then court sustained demurrer for relief. judges a

Dissenting would have found cause of action stated, further, “[S]urely this Court could strike unconstitutionally system deprives of laws which down advantages equal and of school children educational promised thorough and efficient education [382 1247] A.2d State Constitution....” Jersey, Superior in Robinson After the Court New v. Cahill, Super. (1972), 287 A.2d 187 concluded 118 N.J. “thorough” raised level that education must be all districts of the state where deficiencies existed and financing equalizing the school with factors inequities overcoming in the was not distribution burdens, Jersey’s Supreme and tax New funds Court, persuasive opinion reported in a 62 N.J. (1973),26 financing held that the school 303 A.2d 273 Fi Martell, of Robinson Cahill School are in: Discussions Cahill, (1977); nance Robinson v. L. Ann. 139 13 Urban Reform: Through Reforming Finance Constitu- School Tractenberg, equal scheme did not violate either the federal or state protection clauses, permit quality it but did not required education and efficient man- Jersey date the New Constitution: light foregoing, “In the it cannot be said the 1875 amendments were intended to insure equality among taxpayers. statewide But we do equal opportunity not doubt that an educational precisely children was in mind. The mandate for be supported that there maintained ‘a thor- ough system and efficient of free schools for the instruction of all the children the State ages eighteen years’ between the of five and can import. have no other Whether the State acts directly imposes upon govern- or the role local ment, product the end must be what the Consti- system tution A any commands. instruction district the State which is not short the constitutional com- efficient falls violation, mand. Whatever the reason for the the obligation rectify gov- is the State’s to it. If local fails, government ernment the State must com- act, pel it government and if the local cannot carry burden, State itself must meet its continuing obligation....

“The trial court found the constitutional de- mand had not been met and did so on the basis discrepancies per input pupil. in dollar We agree. problem dealWe with the in those' terms input plainly because dollar relevant and be- cause we have been shown no other viable crite- measuring compliance rion for with the constitu- tional mandate. The constitutional mandate could not be said to be satisfied unless we were Way, tions: Robinson v. Cahill Points the Rutgers 27 L. Rev. 365 Study (1974); Note, Robinson Cahill: v. A Case in Judicial Self- Legitimization, (1977); Ruvoldt, 8 Rut. L.J. Educational Cam. 608 Financing Jersey: Beyond, in New Robinson v. Cahill 5 Seton (1973); Sinkin, Developing “Thorough a Hall Rev. L. Berke & System: Implementing School Finance Alternatives Efficient” for Cahill, Robinson v. &J.L. Educ. 337 unlikely proposition low- suppose happens performance to coin- of dollar est level that all mandate and with constitutional cide beyond level attributable lowest are efforts more was to do than State to local decisions supplied] A.2d at [Emphasis obliged [303 to do.” 294, 295] Jersey to the New Su- Robinson case returned implementation. Finally, many

preme times Court (1976), Cahill, N.J. 355 A.2d Robinson financing legislation, the court tested new which fully assuming be it would it was constitutional said “thorough and efficient” new funded. The act defined public schools, and listed certain elements of given system.27 was the state commission- Power such act: said the new The court about pointed had never I we out defined “In Robinson required opportunity spelled of the educational out content Constitution, we indicated that this must done so the and scope obligation way’ the would be ‘in discernible of this some This, apparent. as we 303 A.2d 273. have N.J. at made goal noted, Legislature to do. The of a the has now undertaken principal thorough and of and efficient education the elements explicitly must consist are stated: which it public system goal thorough efficient of free of and “The Jersey, regardless provide be to to all children in New shall schools location, geographic op- educational status or of socioeconomic politically, prepare portunity will them to function economi- which society. socially cally 18A: [N.J.S.A. 7A-4] a democratic and system thorough public of schools shall and efficient free “A elements, guide- following major which shall serve include implemen- legislative goal and the achievement of lines for this act: tation of goals the State and educational at both “a. Establishment of levels; local Encouragement public in the establishment of involvement “b. goals; educational produce the intended to attainment reasonable “c. Instruction computation- proficiency communications and in the basic levels skills; al develop offerings designed program to indi- A breadth “d. pupils; and vidual talents abilities pupils especially Programs supportive services for all “e. special educationally disadvantaged have or who who are those needs; educational “thorough to er determine that a and efficient” jurisdic- education existed. The court retained tion to determine whether being the new act was fund- ed.

So, question: on the threshold no court has been hesis- many to legislation; tant affirm required specific have actions bring compliance local boards them to with mandate; legislation constitutional has been de- clared unconstitutional because it failed the mandate. ample authority There is therefore that courts will en- constitutionally force quality mandated education stan- dards.

Next we must define terms that are basic to the case: “thorough;” “efficient;” “education.” judicial

There are four traditional methods of defini- tions words used in statutes and constitutions and not specifically dictionary defined them: definitions cur- time, rent extant; pronouncements and those now by courts; extra-judicial commentary; reliable and defi- nitions or set inferrable from proceedings debates and the bodies that drew the documents. Complete

A English Dictionary, Universal Rev. Barclay, London, Edwards, 1815, James Richard defines “thorough”: syl- “[T]he word extended into two complete; passing side, beyond lables ... in at one the other....”

It cause; defines “efficient”: “[A] one that makes or things they having causes power be what are ... produce or change cause things, alteration ei- by altering qualities, ther introducing or in new [at ones....” 326] Adequately equipped, sanitary physical “f. and secure facilities adequate supplies; materials and “g. Qualified personnel; instructional and other procedures; “h. Efficient administrative adequate program “i. development; An of research and “j. monitoring programs Evaluation and both State and 456-57, 132, [N.J.S.A.

local 18A:7A-5] [69 levels. N.J. at 355 A.2d at 133]

700 Dictionary, Un- Third New International

Webster’s Mass., Company, Springfield, abridged, Merriam G. & C. 1976, are: definitions ... by completeness; carried

“Thorough marked ... full attention to completion especially with through systematic to all details; by attention sound ... marked details; respects....” complete in all ... aspects ability and use the to choose ... marked “Efficient doing a task means and least wasteful most effective competent ... marked purpose: accomplishing or characteristics, equipment facilitate qualities, or performance of a task in purpose or the serving of a eminently satisfactory manner; use possible the best changed. The Lexically, then, have not man- the words definitions, date, incorporating becomes sense absolutely the education a command extending beyond every detail, complete, attentive further, produce ordinary it re- parameters. And must waste. sults without by courts of “thor- paucity of definitions

There is circumbendibus, “efficient,” de- and most are ough” and proceedings by rulings acts or fining that such-and-such or efficient school to further further or fail identify objectives systems, the words were intended or oblique definitions. allow and thus obtain Korns, 287, 298, N.E. 107 Ohio St. Miller v. Ohio’s forthright “An (1923), attempted definitions: ef- 773, 776 part any or not mean one in which system could ficient teach- districts of the state lacked school number of the Education East ers, buildings equipment.” Board Brunswick, Township East v. Brunswick Council of (1966), proper Super. 20, A.2d added N.J. study, and Board buildings, equipment and courses of Elizabeth, City Council Education Elizabeth (1970), propriety affirmed 262 A.2d N.J.

701 legislative delegation “supervisory of of overall and cen- authority” tral in the state board of education and state commissioner to act for it. Independent

Associated Schools District No. 63 v. of 83, 254, School Dist. No. 325, Minn. 142 N.W. (1913), quoting Board Education Sauk Centre v. of Moore, 412, puts 17 Minn. objective: constitutional regular “[T]o insure throughout state, method whereby may acquire all be enabled to an education which will fit them discharge intelligently their duties republic.” as citizens of the

“Efficient’ only has reference qualifications not to the teacher, but relates to other basic matters associ- system.” ated with the school Ehret v. School District of Kulpmont, 518, 525, (1939). 188, 333 Pa. 5 A.2d equality

An concepts factor in the thorough recognized efficient was Casey, Danson v. Pa. Cmwlth., 382 A.2d goal “The equalize 1243: is to edu- opportunity cational opportunity remove that from dependence upon the student’s situs or status....” but way, adapting (whatever in a relative to local conditions mean). Cahill, 223, Robinson v. Super. 268, 118 N.J. 287 A.2d 187, 210-211, by identifying defines what a efficient education must every do: “[Afford] child such necessary instruction as is to fit it for the ordinary citizenship.... duties ‘thorough’ The word the Education meaning Clause connotes common concept completeness and attention to detail. It simply adequate means more than or minimal.” Illinois has definitions, much more restrained thorough and efficient open everyone, schools are compact. local People districts must be ex rel. Communi ty Unit School District No. 5 v. Decatur School District 61, (1965). No. 31 Ill.2d 203 N.E.2d 423 And in Illi nois, efficient schools are strike-free. Board Education Community Redding, Unit School District No. 2 v. (1965). Ill.2d 207 N.E.2d 427 adopted words: “[C]hil- the Wisconsin court’s

Colorado state, to the extent are the wards of dren ... they degree that providing to that for their education intelligent part themselves and act can care for 308, 312, P.2d Fangman Moyers, 90 Colo. citizens.” 762, 764 any thoroughness el- from educational

Idaho excludes expenditures, Thompson v. pupil equal per ement of (1975). 793, Engelking, P.2d 635 96 Idaho 537 423, P. No. 87 Mont. 288 McNair v. School District In 1, “What, actually (1930), the Montana court asks: 188 system then, ‘thorough’ of education our constitutes system unspecific: it public is schools?” The answer mind, body, morals and and furthers trains both efficiency capacity “happiness, services of and social Dictionary.” New International the educated. Webster’s Also, 428, adequate facili- 190] 288 P. at access [Id. per thoroughness, ingredients and materials are ties (1933). 452, Michaels, v. 94 Mont. 23 P.2d 266 Grant judicially efficient “[A]n Arkansas has decreed by system ... can best be done of free schools Manley through v. boards of education.” [local] 281, (1928); Moon, 260, 264, 6 283 efficien- 177 Ark. S.W.2d cy promoted regulation and fraterni- was of sororities 580, (1946); ties, Srygley, Isgrig v. 210 Ark. 197 S.W.2d 39 efficiency by allowing governor promoted its was opinion inefficient when schools that in his became close Faubus, 445, integrated. v. 230 Ark. 323 S.W.2d Garrett (1959). 877 districts,

Creating for local school local school boards textbooks, schools, providing authoriz- building free “[m]achinery taxation, ing supporting for an effi- were City schools ...” in Dallas cient free (1930). 431, Also, Love, App., v. Texas 23 433 Civ. S.W.2d might promote efficiency, building a home for teachers (1931), Miles, App., v. Civ. 35 S.W.2d 123 as Adams Texas supplies, Bozeman v. Mor- sale of food and school would App., (1931), regula- row, 654 Texas Civ. 34 S.W.2d organizations, Wilson v. Abilene In- tion of student dependent District, School App., Texas Civ. 190 S.W.2d (1945). Kentucky,

In a local starved, board that then closed a high serving part school an identifiable of its constituen cy, violated the efficiency constitutional mandate. Woo ley Spalding, supra. v. Delaware,

In efficient supervised schools must be authorities, school City Milford, Corder v. Super. Del. Ct., (1963), A.2d governance and local pro- school efficiency, motes v. Morris Board Education Laurel Dist., (D. 1975). Supp. Sch. 401 F. Del. Virginia approves local administration promoting efficiency, Flory Smith, supra, v. and the local school authorities should control expenditures, Board of Supervisors County County v. School of Chesterfield Board County, 266, 182 Va. 28 S.E.2d 698 of Chesterfield Day, 439, Harrison 200 Va. 106 S.E.2d (1959), defined segregation efficient in a case: “[I]t is clear that the word ... ... embraces a sufficient number adequate of schools with buildings equipment, and a suf- competent teachers, ficient number of and other basic system.... matters associated with the school separation [T]he of the races alone will not... constitute ” system.’ an ‘efficient efficiency We have found legislature served when the “special high schools, has established graded and schools any locality where it think it wise to do so....” McQueen, 43, 49, Herold v. W. Va. 75 S.E.

(1912), and sys- have decided that in an efficient school tem, necessarily free textbooks are made available indigents. Cassell, supra. Vandevender generally spoke

Constitutional goals conventioners they intended the words used. Ohio’s Archbold’s statement he system that “wanted to see a of schools as perfect devised, improve could be and to see it so as keep pace rapid progress with the most of the most rapid political element constitution,” of our social or de- system at- thorough efficient should a and

scribes what tain. one, argued against two or three-month

A Texan they inefficient. would be terms because school Virginians in the 1861-63 and Conventions West they Perhaps used. expressly define the words did not to mandate thor- their intention telling evidence of system quality highest educa- ough and efficient defeat, devise, the 1872 Conven- was the tors could descriptive tion, as a word of “common” of inclusion they In con- to be established. both schools intended manifest- ventions, hoped to be obtained were the ideals ed, however. ingredients mention that

The debates and cases often system change thorough education are and efficient adapt need able, its beneficiaries most to conditions supra, Hayden, and Archbold’s state Malone v. meet. examples. are in the Ohio Convention ment wealthy schools situ- Dr. commentaries Ambler’s thorough among make a poor schools did not ate they system important were made are because efficient any thought long there was before about conditions judicial system. Appendix II at challenge [See 59] to the Virgin- finding some Compare court’s West the trial systems, and therefore ia counties have constitutional. the entire is remaining word to be defined. The “Education” Unabridged (1973), Dictionary, House Edition Random concisely proc- or defines the word: “1. act [T]he rather acquiring general knowledge, imparting devel- ess of reasoning judgment, gener- powers oping the intellectually ally preparing oneself or others process imparting 2. ac- act or or [T]he mature life. skills, knowledge quiring particular as for a trade or profession....” Philadelphia, According Kaplan v. District to School (1955), 88, and Super. 113 A.2d 164 McNair v.

178 Pa. 1, supra, it includes cultivation District No. School body intellectual culture. and develop- We others include ment, e.g., Wysong Walden, 122, v. 120 W. Va. 196 S.E. 573 (1938). McNair, supra, quotes “To Webster: educate tois ‘lead * **

forth, bring up develop to physically,’ and educa- totality tion is ‘the qualities acquired through training, individual instruction and social which further happiness, efficiency capacity and for social service of ” Mont, 428, educated.’ [87 at 288 P. at 190] Arkansas has said prepare education is to one useful vocation life. Edmondson, Dickinson Ark. 178 S.W. 930 may synthesize

We a definition of education from the (28 cases, encyclopedias Education, C.J.S. for example), and development mind, dictionaries: It is the body (ethics) morality and social prepare persons to for useful happy occupations, and citizenship.28 recreation and thorough We now define a system and efficient develops, It schools: exper- best state of education allows, minds, tise morality bodies and social of its charges prepare happy occupa- them for and useful tions, citizenship, recreation and does so economi- cally.

Legally recognized elements this definition are de- velopment every (1) capacity child to his or her (2) literacy; ability subtract, add, multiply and divide (3) numbers; knowledge government to the extent equipped the child will be as a citizen to make among persons informed choices and issues that affect (4) governance; self-knowledge his own knowledge his or her total environment to allow the child intelli- gently (5) options; choose life work —to know his or her 28Compare Jersey legislature’s goals thorough the New of a system, 28-29, also, supra efficient n. at the elements Jersey of a and efficient as envisioned in New which, legislature, accepted while formulated that state’s were courts, upon support.” conditioned “sufficient fiscal Robin Cahill, son v. N.J. 449 355 A.2d 129 at 132-33. training as

work-training and advanced academic (6) choose; pursuits; intelligently recreational child music, theatre, (7) arts, all creative such interests in (8) arts; ethics, both literature, social and the visual compatability with abstract, to and facilitate behavioral society. others in this (1) good physical facil-

Implicit supportive services: are (2) personnel; careful ities, and instructional materials prevent mon- supervision waste and to and local to state competency. pupil, teacher and administrative itor many recognize education are that facets of We economists, sociologists educators, being by examined legal However, there are undeniable other critics.29 and Bane, “Equality” examples, & see Levine For excellent Controversy, Books, Inc., Rich 1975. See also a statement Basic (now Bench), “Testimony my Neely on Econom ard Brother on this Education,” Manpower Development Revolution: ic Nation’s Employment Hearings on Senate U. S. Subcommittee Before (1963): VI, p. Manpower, seq. Vol. 1026 et high “Today country experiencing proliferation school this mainly underprivileged dropouts coming In ... order from stay background underprivileged encourage in students from an there, they are must be while the schools school and be attentive parts all If school administrators in ... more attractive.... made country which can be used to raise were aware the methods aspirations, parent’s would be a better schools children’s entry position prepare into the modern labor mar- children for long gap parents believe their As is a between what ket. as there economy opportunities to be and what dictates their children’s retarding be, opportunities parents will act as a influence shall aspirations progress. To raise work must be on their children’s parents done with both and children.” 4, 1978, answer, during September if in an interview on As Sander, WSAZ-TV, Huntington/Charleston, Jerry on West televised McCann, Superintendent Virginia, of Schools of Lincoln James County, remarked: and need to be “Parents need to become more involved school just about the education of their children —not be more concerned school, they grade high or finished contented that finished school general just their but want more education kids —better education, know, quality you to work with them and and I am here through encourage time that that and I feel that somewhere down part things lack of interest and concern on the is one of —a parents....” conclusions, including spe- for all our elements bases cifically and cases that are the distilled from the debates thorough specifications what and efficient have, and should do. should Issues Conclusion Constitutional equal protection We conceive both principles applied can and efficient constitutional harmoniously system. financing to the State school Cer- tainly, mandatory requirement thorough of “a the system schools,” XII, of free found in Article efficient Constitution, demonstrates that educa- Section of our right a fundamental constitutional in this State. tion is Because education is a fundamental constitutional State, then, equal protection right our in this under any discriminatory guarantees classification found in financing system cannot stand unless the educational compelling inter the State can demonstrate some State justify unequal the classification. ex rel. est State _ Follansbee, _, City Piccirillo W.Va. (1977); Education v. Board Coun S.E.2d Cimino _ W.Va. _, ty Marion, S.E.2d Here, the trial was asked to decide whether court system financing deficient in certain was so that counties, Lincoln, provide thorough it failed to such as system of education. On the record before and efficient us, judgment on this choose to make no definitive we any judgment point. The trial court was unable to make either, any to set suitable standards because it lacked sys- thorough and efficient educational core values of a tem.

However, given legally recognized components systems, thorough it is obvious from and efficient school County findings Lincoln schools the circuit court’s about are, say least, woefully inadequate they that frankly standards, surprised if and we would be those extra-judicial Appendix compilation of materials consulted V is a cited, Appendix opinion during preparation VI is of the but not compilation not cited. of cases considered but any thorough the school will meet and efficient developed standard that on the remand. course, Of setting when we talk of standards for a system, and efficient recognize education we expert testimony that will be compar- needed. Mere rote ison with other more affluent counties does not neces- sarily serve to system. define the values of such a emphasize great

And we weight given will be legislatively standards, established people because reposed department have government in that “plena- ry, if authority not absolute” responsibility for the system. summary

In guiding legal principles which must shape general case, contours of this we find under Equal our State’s Protection Clause that because educa- constitutionally tion is a right State, derived in this demanding scrutiny more equal strict protection stan- upon dard is thrust the State.

We also have determined Thorough and Effi- requires cient development Clause high of certain quality standards, educational part by and that it inis quality these existing standards that educational Directly must be tested. related to this is the finding further that if these currently values are not being met, it must be ascertained that this failure is not inefficiency result and existing failure to follow school statutes.

With principles these broad mind, proceed we to a analysis further of the current State education statutes develop specific inquiry lines of on remand.30

DEVELOPMENT ON REMAND Financing System Our State school composed aid formula is of four basic (1) components: an amount levy raised from local on real by See the excellent student Gorrell, note & Gillenwater Con Taxation—Equal stitutional Education: A Public Fi School Law— nancing Proposal Virginia, West 75 W.Va. L. Rev. 50 for (2) aid, property;31 foundation personal State and pays general money out of revenue is the State which composed of on a formula to the counties based funds (3) benefits; supplemental components;32 State seven (4) by locally by special vote levies amounts raised county.33 people in of the challenge to that initially is made note that no

We levies. financing that arises from local part of for schools unsuccessfully school fi- other This issue was raised Cahill, supra; v. nancing Serrano cases. Robinson Meskill, supra. Priest, II, supra; Article I Horton v. & expressly that XII, states 5 of our Constitution Section permit- purposes property for school is taxation on local may by Legislature provide the extent ted to general law: support legislature provide for the

“The shall by appropriating the in- thereto free schools fund,’ pro- the net the invested ‘school terest of accruing this and fines of all forfeitures ceeds by general tax- the laws thereof under It property or otherwise. persons ation of county raising in each provide for shall also thereof, authority people district, by required for the amount proportion of the such a pre- be therein as shall support of free schools laws.”[34] by general scribed Code, 18-9A-2. W.Va. Code, through 12. 18-9A-3 W.Va. X, Constitution, Virginia Article Section the West Under by property, levy but a 60 each class of rates are set for maximum made, levy may express his too people be but percent an of the vote levy regular percent rates. maximum limited to 50 property acknowledgment is found local levies on Further Virginia XII, Constitution: of the West Section 7 Article any county may or district be laid “All levies county reported clerk of the to the purpose shall be of free schools prescribed regulations shall, court, under such collector, sheriff, make by who shall law, or other the be collected court; county shall which settlements with the annual settlement thereof, by to be in a book the clerk record made a matter of purpose.” kept for that consider, facially,

We do not least that the State’s concepts equal protec foundation aid statute violates tion, gross because the foundation aid has subtracted county by regular from the from it amounts raised the levy.35 property Thus, county generates a which local a property small amount the tax from local receives a larger amount State foundation than a aid does coun ty large property graphically with local tax. This is by plaintiffs’ Exhibit B to brief. demonstrated [Attached Appendix prop The amounts raised from the local IV] by erty general levy segment tax are shown in the first graph. on the bar State foundation aid is the second segment graph. of the argued appeal, however,

It is on there are basic inequities computation in the seven-factor which the computed.36 foundation aid is factual These contentions Code, problem if, W.Va. 18-9A-12. There See be some on remand, County utilizing it is determined that Lincoln is not the appraisement figures county State Tax Commissioner’s and the county education, court not has allocated to the board of under Code, 18-9A-11, W.Va. the the differential between revenues it appraisal would have based Tax received on the Commissioner’s actually appraisal. and the amount received on the lower W.Va. Code, 18-9A-11, requires compute the State Board of Education to county’s property purposes the tax for revenues based on appraisement made the Tax State Commissioner. It is this county’s gross amount which is subtracted from State founda Obviously, following tion aid. if the counties are not Tax appraisal figures county sup Commissioner’s court is not plementing difference, disparities arise between actual tax purposes hypothetical figure revenues received for school and the appraisal used in the State foundation aid formula. We discuss the problem length subsequent portion opinion. at some 36Appellants p. in their Brief at 22 state: major causing disparities First, “The factors these are as follows. hypothetical share’, ‘local which is deducted from the seven- computation expenses determining factor used state founda- percent actually tion locally aid less than the amount raised percent for education. This 17 is thus not considered in state Second, primary expense category aid calculation. for the state professional educators,’ aid formula is the ‘allowance which category large expense also determines to a extent allowances categories 2, 3, property-poor 6. In 5 and counties the number of

711 explored developed be before below and should were not aid trial court can determine if the State foundation the equal protection standards. meets

Supplemental Aid State any are to make determi- From the record we unable financing It part formula. nation about this State parties. by the court nor not discussed trial was Appel- B by Exhibit That it is manifested to exists it Brief. not of its source or how lant’s are advised We obviously This is a critical area for flows to counties. supplemental development If aid can be made below. systems educational available those counties whose sys- efficient are below the standards standards, this them to the which seems tem and raises unlikely sorry considering conditions in Lincoln unconstitutionality County schools, the claim of un- then dissipat- Thorough and Efficient Clause der ed. Levy Property Special or Excess on

Tax Revenues from what the trial it is clear from the record role While not generated assigned from levies to revenues excess court county, given we these in a believe voted citizens subject Equal Pro- are under our revenues not attack tection Clause. up- specifically Supreme has

The United Court States majority requirement percent contained the 60 vote held Constitution, X, against an 1 of our in Article Section require- right to set equal protection attack on the such 273, Lance, 1, L. 29 Ed. 2d 91 v. 403 U.S. ment Gordon (1971), rev’g S.E.2d W.Va. S.Ct. voluntary such Consequently, exercise equal protection of ei- right standards does not violate The reason State or Federal Constitutions. ther our the citi- arise the free will of taxes excess property-rich proportionately professional than in is less educators physical facilities other of lack of classroom counties because resources....” must, by counties, percent vote, zens who a 60 agree impose on this excess tax themselves. equal protection usually

The violation of the standard action; is, legislative arises from the act of a state body setting, by ordinance, some statute an arbi _ W.Va. trary Woodring Whyte, _, classification. v. (1978); City Parkersburg, _ 242 S.E.2d 238 O’Neil v. (1977); _, City W.Va. S.E. 2d 504 ex rel. _ Coghill, _, Charleston W.Va. 207 S.E.2d 113 (1973); Telephone Chesapeake City & Potomac Co. v. Morgantown, (1958). Here, 143 W.Va. 105 S.E.2d 260 by levies these excess are determined the vote of the people.37 exemption levy equal

The protec- of excess funds from may prevent tion standards them being not from count- thorough ed as available for and the efficient standard. certainly But are there limits to the amount reli- of placed funds, that be ance can on this source consider- government’s ing the responsibility constitutional ' system to assure and efficient of schools. Appraisement Property System acknowledges The trial court one source of dis parity through property between the amounts raised in taxes the poor various counties is that some in are property evidentiary development wealth. There is no issue, develop this and it be should examined to whether “poor” assessing the properties counties are their ade quately, whether, per Code, 18-9A-11, and W. Va. the reappraises State Tax property Commissioner all real in the counties and to make certain that local assessors are using the Tax Commissioner’s values.38 This stat same 37Courts, educators, recognized any as well as have in well- initiative, devised educational there should be some local group willing such that if a of citizens to vote for additional provide advantages. to taxes additional educational San Antonio Rodriguez, 47-54, 51-55, Dist. School 411 U.S. 1 at 36 L. Ed. 16 at 93 S.Ct. 1278 at 1303-1307. Code, pertinent part, 18-9A-11, W.Va. in reads: ap- “The tax commissioner shall make cause to be made an praisal nonutility in the counties of several the State of all real mandatory county places to ute certain duties on courts produce for out of its levies sufficient funds allocate they county would have boards education amounts appraisals the Tax been received had Commissioner’s followed.39 remand, developed prove

Upon evidence must be County’s property tax re- Lincoln low revenue whether faulty appraisements those sults from below set necessary It also be to calculate Tax Commissioner. will nonutility personal property property be and of all which shall upon article 11- [§ and actual value as set forth in three based true seq.], chapter eleven this Code. et 3-1 county any year county assessor or a court shall “Whenever provisions comply of this section in set- fail or refuse to with purposes any property ting for assessment valuations (1) county, property in the the state tax commis- or classes of class purposes made the valuations sioner shall review assessment (2) county county shall direct assessor and the court county county and the court make such corrections assessor necessary they comply with so that shall the valuations chapter seq.] requirements [§ 11-1-1 et this Code eleven (3) section, the tax commissioner shall enter of this (4) county required ratios. Refusal the assessments fix county court to make such corrections shall or the assessor supplied] grounds [Numbering for removal from office.” constitute 18-9A-11, pertinent part: Code, in reads 39 W.Va. county year any valuation of a “In in which the total assessed forth, requirements the set fail to the minimum above shall meet year county county for such to the shall allocate court of such county county tax the from the levies allowed to board of education will, applied portion as to the its levies when a sufficient court county, property purposes in of such the assessment valuations for money equal the provide to between the difference sum of by produced application be of revenue which will amount levy [§ 18-9A-2] in of this setion two rates defined allowable proper- purposes upon for assessment such the valuations article yielded by the ty which would be the of revenue amount fifty percent appraised application the total of levies to of such (5) county property. shall In the event the court valuations of such provided as for reallocation of levies or to make the fail refuse education, commissioner, herein, county the the tax the board of party, right board, any to have the other interested shall or state competent any by mandamus in court of the writ of enforce same [Numbering supplied] jurisdiction.” deficiency, any, the amount of if to determine the true impact financing in the State formula Lincoln Coun- ty.40 Moreover, inquiry must be directed in other low property revenue to determine if appraise- counties the provisions being ment are followed.41 Code, 18-9A-11, It legisla- is obvious that W.Va. reflects perception equality property tive in taxes could not property appraisements occur until uniform were set in Legislature’s the various counties. The intent to have complied by this section is with demonstrated these penalty provisions: broad enforcement (1) “[T]he state tax shall commissioner review purposes the valuations assessment made county county assessor and the court ... (2) “[The tax commissioner] state shall direct county county assessor and the court make such corrections in the valuations necessary they comply so that shall with the requirements chapter seq.] eleven 11-1-1 [§ et section, of the Code and of this ... (3) “[T]he tax [state] commissioner shall enter county and fix the assessments the re- quired ratios....

(4) county “Refusal or assessor court to make such corrections shall constitute grounds for removal from office.

(5) “In county the event shall court fail or refuse make the pro- reallocation of levies as herein, county vided for education, board commissioner, the tax board, any the state party, other interested right shall have the enforce the any same writ of mandamus previously inquiries We have discussed note some County must be made to making determine if the Lincoln Court up any deficiency appraisements between the actual and the State appraisements. Tax Commissioner’s mandatory placed by Legislature Because of the duties on Code, 18-9A-ll, Tax Commissioner under W.Va. he is clearly indispensible party any an suit to declare the State funding statute unconstitutional. competent jurisdiction.” Code, court of 18- [W.Va. 9A-11] Battle,

To the extent that ex State rel. Raese v. 149 W. (1965), Va. 143 S.E.2d 328 states the Tax Com power proceed missioner is without to enforce the provisions Code, 18-9A-11, of W.Va. it is overruled. Building

The State School Fund apportionment Another concern is of the State School Building Code, 18-9C-1, seq., Fund under W.Va. et particularly the entitlements set out in Section 5. The question basic is whether these funds are allocated provide physical manner that will essential facilities Again, expert meet and efficient standard. testimony develop appropriate will be needed to County standard. Lincoln school facilities must be tested standard, regard this with some to an overall effi- plan. cient

The Administrative Role State’s State Board School Finance Legislature forty years ago recognized almost adoption

that: “Because of the Tax Limitation Amendment, necessary it has become for the State to participate increasing degree to an financing in the Code, the free schools.” passed W.Va. 18-9B-1. It Code, 18-9B-1, what seq., creating is now W.Va. et giving variety State Board of School Finance and it a budgetary powers county administrative over boards of education.

While there is no need at this time to review each of provisions Article, of this the trial court on remand should ascertain if the Board of State School Finance responsibilities has carried Article, out its under this County complied and whether Lincoln has with Ar- this ticle. Superintendent Schools and State Board Education Code, 18-9A-17, expressly provides perform-

W.Va. powers given ance of and duties to the State Board of Code, 18-9B-1, seq., School Finance under W.Va. et ultimately responsibility Virginia of the West Board of Education officer, its chief executive the State Superintendent of Schools:

“Notwithstanding any and all references the board of school finance as found article seq.] nine-B chapter, [§ 18-9B-1 et of this Virginia education, West through board of its officer, chief carry executive shall direct and out provisions all of said Code, article nine-B.” [W.Va. 18-9A-17]

Consequently, the trial require court should develop- performance ment of the facts about of those duties. It is also clear that Code, 18-9A-11, under W.Va. State Board of required Education is to calculate county’s property tax revenues which are subtracted from the Inquiry State foundation aid. should be made to determine if complying it is with this section. This would determining appraisement include figures what it obtains from the State Tax Commissioner.

According Code, 18-2-23, to W.Va. Virginia the West Education, Board through Superintendent the State Schools, required has been since 1965 to establish “a comprehensive program educational programs county systems.” school provides This section also existing county evaluation systems school on a con- tinuing basis to detect deficiencies and to make recom- mendations to correct deficiencies.

Certainly on remand the trial require court should production full plans, of the studies and recommenda- tions made Superintendent Board and the State County to Lincoln and State-wide. These studies should development be useful of standards thorough for a system. and efficient previously pointed

We have thorough out that our efficient requires constitutional mandate something equality more than a mere funding educational to the counties. Blankenship, Brotherton supra, holds: “Article Section 1 of the Constitution Virginia provides:

West legislature pro- ‘The shall vide, by general law, thorough for a and efficient system of free schools’. It has been held that this requiring section the establishment and mainte- nance of free schools is an absolute and manda- tory duty part Legislature. on the State ex Sims, rel. Trent v. 138 W.Va. S.E.2d (1953).... It the view of this Court foregoing adequately peo- reflects the will of the ple, through by them, the basic law enacted schools is efficient of free paramount importance society in a of that neither free legislature nor the executive government may perform any branch act which safeguard.” would result in the elimination this [_ [Emphasis supplied] _, W.Va. at S.E.2d at 436] perhaps appropriate point digress

It is this to to problems one of the that we see in the record before us. It contains a number of statistical and studies tables with little information their about relevance. Affidavits type are admissible in of action which this is heard with- jury, out but it be useful on will remand to have evi- purposes, explanations dence elicited and about background compilations Opposing parties may, of data. course, cross-examine affiants. The Local Role

It is essential a determination be made on re- mand, County the Lincoln Board of Education is fulfilling responsibilities imposed by thorough its mandate, administering sys- in and efficient its school tem. Schools,

Certainly, Superintendent the State as well County Schools, Superintendent as the Lincoln should input in area. have direct this These constitutional offi- professionals required imple- who are cers are trained policies ment of the State Board of Education statutory County Their Board of Education. duties Code, 18-3-1, seq., 18-4-1, are set out et et W.Va. seq. Code, 18-5-11,

Particular attention is directed to W.Va. joint by County permitting of schools establishment adjoining of two or more counties Boards of Education they operate conjunction authority with the vested County Code, 18-5-13, Boards under W.Va. to close and Obviously, consolidate economy schools. efficiency by be duplicate affected the number of school facili- being operated ties that are county. in the same remand, judgment On some must be made educa- experts whether, tional as to existing under stat- utes, County the Lincoln being operated school reasonably in a manner, any efficient before ultimate present decision can be statutory made that scheme fails thorough to deliver a and efficient education. Parties legislative Constitution mandates responsibility a State-wide system. and efficient should, upon

The trial court remand, require the suit be Speaker amended to include the of the House of Dele- gates and the President Virginia the Senate of West Undoubtedly, as defendants.42 expert studies made legislative various committees will assist in the ulti- mate formulation system. standards Legisla- for the representatives tive opportunity should have an fully explore any of the theories or plaintiffs’ statistics in the any case to possible demonstrate errors or deficiencies. said, As legislative we have determinations of standards very would important persuasive to us. previously We have noted that parties other essential are the Commissioner, State Tax County the Lincoln Superintendent, Board, its School its Assessor County Court, all of charged whom are mandatory with roles under this State’s educational statutes.

CONCLUSION A “Sketch of the Erection and Formation of the State Virginia of West Territory from the Virginia,” of prefix a 42 recognized We involving have that a suit State officials assert ing unconstitutionality of a State statute is not barred as a against VI, suit the State under Article Section 35 of our State See, e.g., Farley Graney, Constitution. 22, 146 W.Va. 119 S.E.2d (1960); Wyoming Board County Education v. Board of Works, 593, Public 144 W.Va. 109 S.E.2d W.Va., Reporter, to 1 was included in first “in order our pass that therein recorded not from the events memory, provide and at the same time to some accessi- memoranda, lawyer practice ble useful to the his convenient for reference all.” W.Va. [1 Preface] 72-73, pages during The “sketch” at discussion about Constitution, our 1863 has these comments: “But that the feature of the instrument demon clearly spirit enlightened pa strates most enlarged genuine triotism and sense of interest humanity, provi in the cause of was the liberal system sion for the establishment of a of free schools.”[43] funding

Our basic law makes education’s second in priority only payment debt, and ahead of of the State manifests, every other State function. Our Constitution throughout, people’s Legisla- clear mandate to the ture, public prime that of our education function government.44 must not allow that command to We be unheeded. judgment of the and re-

We reverse Circuit Court proceedings mand case for as directed. this

Reversed and remanded. I APPENDIX CONSTITUTIONS CLAUSES IN STATE FOR SCHOOL SYSTEMS PROVIDING CONST, 14, legislature § “The shall ALA. art. 256: establish, organize, maintain a liberal public throughout for the schools the state benefit report apparently in the humorous remark Contrast Maryland speech by Delegate McKaig, Debates Constitutional at 247: Convention systems had, years ago, public some reviewed “He Europe, and he had come to the conclu- the different States and of humbugs, people but as the seemed sion that schools were them, something in therefore he was content think there was something in there was them....” admit Appala patriots were never afflicted with “an of this State nobility ignorance-” mentality T. Leonard chian finds Gazette, Anderson, Justification, No Ethical Charleston Jan. 9A, 1. Col. CONST, VII, § art.

children thereof ..ALASKA 1: by legislature general The shall law establish and main- system public open tain a schools to all children of the CONST, XI, Legislature § art. 1: State ..ARIZ. provide shall enact such laws as for the shall establish- general public a ment and maintenance and uniform CONST, system IX, § Leg- art. 5: ..CAL. “The provide system schools.”; islature shall for a of common CONST, always § art. “There CONN. 1: shall be free elementary public secondary state.”; and in the schools CONST, IX, § “Adequate provision FLA. art. 1: shall be system for a public made law uniform of free CONST, 8, § schools.”; provision GA. art. 1: “The of an adequate primary education for the citizens shall be a obligation Georgia, expense State of of which CONST, provided taxation.”; shall be for the HAWAII IX, provide § art. 1: “The State shall for establish- ment, support system pub- and control aof state-wide CONST, ...”; VIII, § “Knowledge lic schools IND. art. 1: learning, generally throughout and a diffused communi- ty, being preservation govern- to essential of a free ment; duty Assembly it be the of the shall General to means, encourage, moral, intellectual, all suitable sci- entific, agricultural improvement; provide, and to by law, general system a for and uniform of Common CONST, ...”; IX, § Schools IOWA art. 12: “The Board of provide shall Education for education all youths State, through of the of Common CONST, ...”; 6, § legislature Schools KAN. art. 1: “The provide intellectual, educational, shall for vocational improvement by establishing maintaining scientific CONST, public .”; VIII, § .. LA. schools art. 1: “The legislature provide shall people education of the public the state shall establish and maintain CONST, system.”; VIII, § educational ME. art. 1: “A general advantages diffusion of the being of education preservation rights essential of the and liberties people; promote important object, Leg- this authorized, duty islature are and it shall be their require, provision, the several make towns to suitable expense, support and maintenance own for the their schools.”; V, § Chap. II: MASS. CONST. “Wisdom knowledge, virtue, generally well as diffused and body people, being necessary among of the for the rights liberties; preservation their and and as these opportunities advantages depend spreading and on country, parts on the various of the and of education people, it be the among the different orders of the shall peri- duty legislatures magistrates, in all future and Commonwealth, ods of the to cherish interests sciences, and the and all seminaries of them literature CONST, VIII, § ...”; Legislature “The art. 2: MICH. support system public a of free ele- shall maintain and secondary Every mentary defined law. and schools as provide pu- for the education of its school district shall CONST, § ...”; 8, pils art. without discrimination MISS. may, discretion, provide Legislature for 201: “The its for the maintenance and establishment of free schools CONST, (a): ...”; IX, general § art. “A all children MO. knowledge intelligence being and essential diffusion rights preservation and liberties of the to the assembly general and main- people, shall establish CONST, ...”; VII, § public 1: tain free schools NEB. art. Legislature provide “The shall for the free instruction persons ...”; of this state all the common schools CONST, legislature provide § art. 2: “The shall NEV. schools, by system which a a of common for uniform maintained in each shall be established and CONST, ...”; “Knowledge H. art. school district N. 83: through community, learning, generally a diffused and preservation govern- being to the of a free essential advantages ment; spreading opportunities and and CONST, XII, § ...”; 1: “A uni- N. M. art. of education system public for the edu- form of free schools sufficient to, age of, open and all the children of school cation maintained.”; and N. Y. shall be established the state CONST, legislature provide § 1: “The shall for art. system support of free com- and of a the maintenance may schools, all the children of this state mon wherein CONST, (1): IX, § educated.”; “The Gener- N. C. art. be Assembly al provide by shall taxation and otherwise general system and public uniform of free schools .. CONST, D. VIII, § N. art. high degree 147: “A of intelli- gence, patriotism, integrity morality part and on the every government voter in a people being neces- sary in order to insure the govern- continuance of that prosperity ment and the happiness for the establish- ment system maintenance of a public schools CONST, ...”; 13, § OKLA. art. Legislature 1: “The shall system establish and maintain of free schools wherein all the children of educated.”; the State CONST, VIII, § OR. art. Legislative 3: “The Assembly provide by shall law for the uniform, establishment of a CONST, general Schools.”; of Common R. I. XII, § art. 1: “The diffusion knowledge, as well as of virtue, among people, being preser- essential to the rights liberties, vation of their duty it shall be the general of assembly promote public to schools, and adopt to they may all means which necessary deem and proper people to secure to advantages op- and CONST, portunities education.”; of XI, § S. C. art. 3: “The Assembly provide General shall for the mainte- support system nance and of a public of free schools CONST, open to all State.”; children in the 8, § S. D. art. stability 1: “The republican of a government form of depending morality on the intelligence and people, of the it duty shall be legislature of the to establish and general maintain system and public uniform of schools CONST, ...”; 11, § TENN. “Knowledge, art. 12: learning, virtue, being and preservation essential to the repub- of institutions, lican and the opportunities diffusion of the advantages and of throughout education the different portions State, being highly pro- conducive to the end, motion of duty this it shall be the of the General Assembly periods in all future Government, of this to CONST, cherish science.”; literature and X, § UTAH art. Legislature 1: provide “The shall for the establishment and system maintenance of a public uniform of schools ...”; CONST., § VT. 64: encouragement “Laws for the prevention virtue and immorality, of vice ought and to constantly kept force, daily executed; be and a competent ought to number schools be maintained Assembly permits each town unless the General other provisions youth for the convenient instruction .. CONST, §9, Legislature pro- WASH. art. 2: “The shall general system vide for a and uniform schools CONST, ...”; X, § legislature WIS. art. 3: “The shall provide law for schools, the establishment of district nearly practicable ...”; which shall be as uniform as CONST, 7, § legislature 1: provide WYO. art. “The shall complete for the establishment maintenance of a public instruction, and uniform embracing elementary every free grade, schools of kind needed university professional with such technical de- partments public good may require as the and the allow, means of the state and such other instructions necessary.”

APPENDIX II A HISTORY OF EDUCATION IN WEST VIRGINIA

BY CHARLES H. AMBLER Ambler, History Dr. Charles H. in his A Education Virginia (From Early 194-9) West Times Colonial (1951), perceptive govern- made observations about our fidelity providing thorough ment’s and efficient edu- periods cation at various since 1863. keeping

In with the conservative in- tendencies levy cident Panic 1873 the state school remained during peri- constant ten this cents levy fifty od. The maximum district cents was unchanged, also but the actual varied levies from respective county county to as determined their instance, programs. wealthy wealth and For ten average levy counties with an of 18.5 cents for average 1873-74 had an term of four and one-half months, poorer whereas ten counties with an av- levy erage only of 39.5 cents had three and one Furthermore, average half months. the levies counties, sixty aggregating all about cents buildings, plus levy for schools and the state year, produced a total of would have the same $1,000,000, practices under the current but about only $647,000 include which did not the total was $83,000 capitations. Virginia adhering inequalities

In to these West griev- One of the chief was most inconsistent. against the mother residents ances of her former many to had taxed the edu- was that she state turn, daughter adhered a In state cate few. practice, except that instead of fa- the same to poor, indigent voring aristocrats landed Industrialists,” as resi- “Ironheaded she favored counties were sometimes dents of the Ohio River protested time time rural units called. From situation, they helpless. were against but this inequal- perhaps anything else these More than large progress in a educational ities retarded part of the state. development fact was face that legislature pro- required

the constitution system. Instead, “thorough efficient” vide a system, beginning the Radical under the actual the tax burden leadership which refused to shift state, to the was much like from the local units shanties hovels with lot of tumbled down fine From the stand- here and there in a house. point the “fine house” was of a statewide in a letter to the hurdle. To scale it “Citizen” 9, 1878, suggest- Wheeling Register for November For the constitution be enforced. ed county the ad- purpose, he would have made ministrative unit. constitution, enforcing the industri-

Instead advantage agrarian interests al and took following depressed economic conditions they perhaps, escape cul- tax burdens. Worse still complex poverty which the state tivated a from response yet In thereto has not recovered. products legislature exempted certain farm taxation, products together from with mines, wells, all manufactured salt oil wells and resulting and la- products from mechanical skill exempt chargers Taking advantage of tax bor. granted by Virginia, railroads were meanwhile paying pittances mere in taxes. As result exemptions these practices and the total as- sessed for valuation the entire in state 1883 was $11,000,000 about in legis- less than but the lature, ignoring repeated requests gov- from the ernor, failed to correct the situation. the Thus system, including entire educational the state University, normal schools and languished for support. lack financial And about the three decades between 1880 and 1909:

Unfortunately for the state’s educational inter- ests, corporate control of its industrial econo- my largely was non-resident. Inasmuch as there was little capital, available resident leaders vied with making each in other investments attrac- capital” which, tive to “out-of-state with the tacit approval public generally defiance constitution, given the state was assurances respect public expenditures. with to taxes and to only In leaders, a few instances did the either non-resident, oppose resident free schools, secondary they but became a instead primary interest, pre-Civil as in the War and period. the Reconstruction Under such conditions leadership teaching the educational per- sonnel, exceptions, with notable tended to be- rate, tendency, begun come second and a in the Reconstruction, looking every to the North for good thing heightened. Jefferson, was Thomas Henry Ruffner, Dr. and even White Wade forgotten. Incidentally, poverty were all but complex of the Reconstruction took on an inferi- ority complex which, anything more than else perhaps, tended thwart individual initiative education. Under it not circumstances was expected and, appear, regard- when it did it was suspicion. ed with maladjustment period

Much of the of this changes be accounted fact that appreciate were of a the result revolution. To this, Virginians, it is recalled West as of 1880 life, were as by their mode of

and as determined Babylonians, some of them old as using primitive tools as flails were such still most them period this At the end of sickles. economy, an practicing domestic but were still towns and cities increasing resided in number industry Be- upon subsistence. depended for and and of human nature the limitations cause of give to to more attention of their failure because they deprived education, of a due had thus been birthright, their natural their in that share of being exploited rather than de- resources were large veloped. Moreover, throughout the areas many overtaken and in had been inhabitants submerged economic devel- an arrested cases “thorough system efficient opment. Thus and the authorized in the constitution of free schools” failed to materialize.

(205-7). times, Illustrating Dr. wrote: Ambler joined Jersey already in Virginia New West had corporations market-place charters for asking point questions or no and few made purpose, For that the sec- about their character. carrying retary Virginia, of state of West him, gone had of the state with Great Seal City opened temporary in 1890 and New York hotel, where, quarters sales in a downtown sundry prices,” he “all “the lowest issued who wished them.” following financing

He our school in dec- discussed ades: feature of the entire was its

The worst instance, capi- stultifying inqualities. per For per in the 1920’s varied from tal wealth student District, Jumping Branch in Summers $841 $14,664 District, County, Monongalia in Cass County. thirty levy cent on these values yielded in the former for each child $1.59 time, in the latter. At the same active $48.90 purposes rates of taxation for school varied from District, in cents Freeman’s Creek Lewis County, Ripley Independent District, in $2.22 County. year ending Jackson For 1917 the in thirty-seven term districts from varied seventy-five days to one ten hundred of the re- quired term, month Survey six and the of Educa- tion, years later, ten made indicated chil- dren poor in rural districts with short terms and far teachers were behind children who attended city and consolidated schools. difficulty lay

The chief in the fact wealth spots state in was amassed sections, spots while other and sections were support without taxable good wealth to even ele- mentary consequence, schools. As a in 1924 days fifty-three terms varied from 180 dis- days forty- tricts to 160 less three hundred districts, average per four capita cost longer districts with the terms was much less former, than in those with shorter terms. In the buildings equipment sort, and were of the finest in the whereas latter children were into crowded “huts,” unpainted bare, poorly heated, and rude- ly furnished, sanitary without and libraries out- Moreover, buildings. the best in teachers were wealthy provided districts which were also supervisors special with and in instructors mu- sic, drawing, subjects. and In other face requiring property full law to be assessed at its value, and actual the assessments coun- some year year ties were lowered from as so supplemental boost their shares of the funds. (439-40). detail, financial, Dr. recites Ambler substantial political personal history and involvements in the suggest Virginia perusal West education. We of his sec- Virginia expose financing tions on West school which not only the sums invested in education from and local state 1940’s, sources into the but the effect our constitutional upon Tax Limitation Amendment had con- relative by tributions made local and state taxation. III

APPENDIX THE FROM PROVISIONS EDUCATION CONSTITUTION WEST VIRGINIA ARTICLE XII. law, by general legislature provide, shall

1. The free efficient and for schools. Superintendent The of Free Schools 2. schools, supervision general have a of free

shall perform duties in thereto and other relation such by perform- may prescribed law. be If in any duty imposed upon him ance such any Legislature, expenses, he shall he shall incur Provided, amount therefor: be reimbursed any hundred one does not exceed five dollars year. County Legislature may provide Su-

3. may be perintendents, and such other officers as Article, necessary objects carry this out duties, powers compensa- and and define their tion. existing permanent

4. The and invested fund, money accruing all from to this State forfeited, delinquent, unappropriated waste and lands; for taxes lands heretofore sold from Virginia, if hereaf- purchased the State of State; redeemed, to others this ter or sold than devises, bequests made grants, or all education, purposes or to this State for the grants, devises, purposes or where the of such just bequests specified; are this share not State’s Virginia, paid literary whether fund liquidated; any sums over otherwise money, stocks, property, which shall or this State Virgin- right have the to claim from the State purposes; proceeds of the ia for educational the persons may leaving a die estates who without heir, lands; pro- all the will or and of escheated any may on the ceeds taxes be levied moneys any corporation; revenues all may paid equivalent exemption from be an for as military may, duty; and such from sums as time time, by Legislature to appropriated be the for purpose, apart separate the shall be set as a fund, Fund,” to be the called “School and invest- regulations prescribed ed may under such be as by law, bearing in the interest securities of the States, State, United of this or or if such interest bearing obtained, securities cannot be then said “School Fund” shall be in such invested other bearing solvent ap- interest as shall securities be proved by Governor, Superintendent the of Free Schools, Treasurer, hereby Auditor and who are Fund,” constituted “Board the of the School to same, manage regulations under such may prescribed by law; be and interest there- annually applied support of shall be to the of free throughout State, schools and no other purpose any portion whatever. But of said inter- remaining unexpended est at the of a close fiscal year, to, part of, shall be added remain capital Provided, of the Fund:” “School That all by upon taxes which be shall received the State delinquent lands, except due taxes to the thereon, county, State shall be refunded or by district or which were for the same levied. Legislature provide 5. The support shall for the Schools, by appropriating of Free thereto the in- Fund,” terest of the invested “School the net proceeds accruing of all forfeitures and fines thereof; capi- this State the laws under tax; by general persons tation on taxation property provide or otherwise. It shall also raising, county district, by for in each or authority people thereof, proportion such required support of the amount for the of Free prescribed general Schools shall therein as laws. any county

6. The school districts into which divided, changed pur- now continue shall until suance of law. any county

7. All levies that be laid Schools, purpose district Free shall be reported County Court, to the Clerk of the may pre-

shall, regulations be such as under by Sheriff, by law, the or be collected scribed collector, make annual settle- other who shall County Court; ment with the which settlements by record be made a matter of Clerk shall thereof, kept purpose. for that in a book to be persons shall not be and colored 8. White taught in the same school. person free school connected with the

9. No State, any educational in- of the or with any name, grade or under State con- stitution sale, proceeds trol, in the or shall be interested used, profits any thing or to be book or other may therein, penalties such be used under by Provided, nothing prescribed herein law: any written, apply work shall be construed to invented, thing person. or such district, independent orga- 10. No free school or created, except hereafter be with nization shall the school district or districts out consent of created, expressed the same is be of which voting question. majority of the voters on appropriation 11. shall hereafter be made No thereof, any School, or branch ex- State Normal already established, opera- cept and in to those tion, now chartered. encourage Legislature foster and

12. The shall intellectual, agricultural moral, im- scientific shall, may practica- provement; it whenever it blind, ble, provision for the mute make suitable insane, organization in- and for the of such learning as the best interests stitutions general in the demand. education provisions mention educa- of our constitution’s Other tion: legisla- power §

Article 5: “The of taxation payment.of provision for the ture shall extend to thereon, debt, support and interest state of free schools, payment the annual estimated ex- and the State; emphasis.] penses ...” [Our of the county Section 7 They limits authorities: .. shall taxes, any year, never agrégate assess one ninety-five which shall per exceed cents one hundred valuation; except support dollars schools; of free payment people indebtedness ..unless county approve by three-fifths of the votes cast. [Our emphasis.]

Section Amendment,” called “Better Schools “Notwithstanding any states: provision other contrary, Constitution to the the maximum rates autho- by rized and allocated law for tax levies on the several property classes of support public may for the schools any be increased school district ...” Amendments include “The Irreducible School Fund Amendment” Buildings and the “Better School Amend- ment.”

THE IRREDUCIBLE SCHOOL FUND AMENDMENT

(1902) The accumulation provided the school fund for in twelve, section four of article of the Consti- State, tution of this upon adop- shall cease the tion amendment, moneys this and all to the credit said fund dollars, over one million to- gether with fund, the interest on said shall be support used for the of the free schools of the State.

Section of the Education Article was amended Today 1957 and ratified in 1958. this section reads as follows: OF

SUPERVISION FREE SCHOOLS § general supervision 2. The of the free schools of the State shall be Virginia vested in the West perform board education which shall such du- may prescribed by ties as be law. The board shall appointed by consist nine members to be governor, by and with the advice and consent of senate, overlapping for years, terms of nine except original appointments shall be one, two, three, four, five, six, seven, for terms of than years, respectively. No more eight, nine belong to the shall of the board five members gen- political party, in addition to same by required qualifications otherwise eral Constitution, may require legislature other membership qualifications on the specific for may removed member of the board be No board. except by governor for official from office neglect duty, misconduct, incompetence, immorality, only in the manner gross and then by gover- by prescribed law the removal elective officers. nor state shall Virginia board of education The West law, the state prescribed select the manner schools who shall serve superintendent of free pleasure. He be the chief school will and shall its powers such and shall have officer of pre- perform duties as and shall such by law. scribed superintendent of free schools shall

The state of the board of works be a member B, fifty-one, arti- provided section subsection cle six of this Constitution. (1972)

BETTER BUILDINGS AMENDMENT SCHOOL power authorize legislature shall have to bonds, selling issuing state not ex- and aggregate two million ceeding in the hundred in addition to all other dollars, which shall be proceeds authorized. The bonds heretofore state hereby be issued and authorized to of the bonds shall, notwithstanding provisions of sec- sold any six, or article ten of this Constitution tion provision of con- other this Constitution county trary, boards of distributed such by meeting qualify as therefor such education conditions, requirements as qualifications and by general prescribed and used and law shall be county appropriated such boards of education solely construction, renovation or remod- for the public elementary secondary eling or school facilities, equipping buildings or same construction, any reno- in connection with such remodeling acquisition vation or and the preparation elementary secondary sites for or buildings or facilities. Such bonds may be issued and sold at such time or times in such or amount amounts legislature as the shall authorize. When a bond as issue aforesaid is authorized, legislature shall same provide time for the collection of an annual state pay tax sufficient it accrue the inter- est on such principal bonds and the thereof with- in and exceeding thirty-four not years, and all such so irrevocably taxes levied shall be dedicat- payment ed principal for the of and interest on finally paid such bonds are discharged, any of covenants, agreements provisions legislature in the levying acts such taxes any shall be competent enforceable court jurisdiction by any of the holders the bonds. IV APPENDIX PER 1977-78 PUPIL FUNDS LEVY BY REGULAR COUNTIES RANKED APPENDIX V BIBLIOGRAPHY OF MATERIALS CONSULTED BUT

NOT CITED I. Monographs Texts and Baldwin,

R. D. Financing The Public Education in of (1938) Virginia. West Kirst, J. S. Burke and M. W. Federal Aid to Educa- (1972) tion: Who Governs? Who Benefits? Burkhead, (1964) J. Public School Finance. Burrup,

P. E. Financing Education in a Climate of (1974) Change. Coons, al.,

J. E. et Private Wealth and Public Educa- tion. Garns, al.,

W. I. et School Finance: The Economics (1978) and Politics Public Education. Greene, (1963)

E. H. Virginia West School Guide. Johnsen, (1941) J. E. Federal Aid For Education. Kursh, H. The United States Education: A Office of (1975) Century Service. Legislative Committee, Interim A Report Survey Aof Public Education in the Virginia. State West

(1945) Morgan B. Cork, F. S. and J. History Education in (1945) Virginia. West National Legislatures, Conference of State School (1976) Legislature’s

Finance A Handbook. Reform: R. D. Hartman, Reischauer and R. W. Reforming (1973)

School Finance. Wing, H. S. Rowland and R. L. Federal Aid for (1970) Schools.

Senate Committee Welfare, on Labor and Public Sub- Employment, Manpower

committee on and Pover- ty, (1963) Hearing. Senate Committee Taylor, (1973) D. B. Virginia. School Laws West II. Periodicals

A. Lead Articles Anderson, R.,

1. W. North School Shore District

v. Kinnear: The “General Uniform” LAW and CON- Clauses,

“Ample Provision” (1974). TEMP. PROB. 366 L., Areen, Rodriquez J. and Ross Case: 2. Finance, Oversight School Judicial (1973). REV. 33 SUPREME COURT E., Coons, Neutrality” “Fiscal 3. J. Introduction: LAW and CONTEMP. Rodriquez, After PROB. 299 Gammon, E., Equal T. the Law 4. Protection Independent District

and Antonio School San (1977). Rodriquez, 11 VAL. L. REV. 435 U. v. W., Gard, Independent S. Antonio School 5. San Way Rodriquez: District v. Our Where? On (1973). VAL. U. L. REV. 1 8 Grubb, N.,W. Legislative 6. The First Round 38 LAW World, the Post Serrano

Reforms (1974). 459 and CONTEMP. PROB. E., Hain, v. Breaking Leg- Milliken Green: 7. and Deadlock, 38 LAW CONTEMP. islative (1974). 350 PROB. Harrison, R., Antonio In-

8. Now San What After Rodriquez?:

dependent Elec- School District Inequality the Public Fi- toral and School 5 Systems Texas, and nance California (1974). RUT-CAM L. REV. 191 Jennings, F., Likely 9. J. Federal General Aid — (1973). and ED. 89 Illusory, J. LAW. 2 Karst, L., K. Inputs 10. v. Priest’s and Serrano

Outputs, 38 and PROB. LAW CONTEMP. 333 (1974). Levin, B., System

11. Alternatives the Present Their Problems and Pros- School Finance: (1973). pects, 61 LAW J. 879 GEO. B., Levin, Developments 12. in the Law Recent 4 J. LAW Equal Opportunity, Educational (1975). ED. 411 E., Wise, Lindquist, E., Develop- A. R.

13. Equal Litigation: Protec- ments Education (1976). and ED. tion, 5 J. LAW Lutz, J., School Finance: Edgren, 14. F. W. and D. Pennsylvania

A Look at Critical Act 5 J. (1976). LAW and ED. 317 Equal McCarthy, M., Is Protection 15. M. Effecting Clause Still a Tool Viable Educa- tional Reform?, (1977). 6 J. LAW and ED. 159 McDermott, The Cost- Klein, P., 16. E. J. S.

Quality Litigation: Debate in School Finance Do Dollars AMake Difference?, 38 LAW (1974). CONTEMP. PROB. 415 Through Michelson, S., Legisla- 17. Reform tures ..., PROB., 38 LAW and CONTEMP. (1974). Rodriquez Porras, D., Case—A Cross- 18. D. Finance, road in Public School 26 TAX LAW (1972). Porter, C., Rodriquez, the “Poor” and the 19. N.

Burger Court: A Prudent Prognosis, BAY- (1977). LOR LAW REV. 199 Roos, D., Impact The Potential 20. Rodri- R.

quez Litigation, on Other School Reform LAW and CONTEMP. PROB. 566 Sugarmun, D., Other Educational Reforms 21. S.

..., 38 LAW PROB. CONTEMP. 513 (1974). L., Rethinking Sugarman, Kirp,

22. S. D. and D. Responsibility Education, Collective 39 for (1975). LAW and 144 CONTEMP. PROB. Through Congress Timpane, M., 23. P. Reform Future, Federal Aid to Schools: It’s Limited (1974). 38 LAW and CONTEMP. PROB. 493 Tractenberg, L., Robinson v. 24. P. Cahill: “Thorough Clause, 38 LAW Efficient” (1974).

CONTEMP. PROB. 312 W., Thoughts Rodriquez: Yackle, on 25. Mr. L. Equal Powell and the Justice Demise Pro- of Analysis Court, Supreme tection 9 V. (1975). RICH. LAW REV. 181 Rodriquez Yodof, C., v. Morgan, 26. M. G. and D. Independent San Antonio School District: 738

Gathering Ayes Politics Texas —The Reform, 38 LAW CON- Finance School (1974). TEMP. 383 PROB.

B. and Comments Student Notes — Comparison Mis-

1. Law —A Constitutional Aid to

souri and Federal Standards State Schools, 42 MO. LAW REV. 618 Non-Public (1977). Equal Protection—

2.-Constitutional Law — Financing System, Validity Texas School (1973). DUQ. 12 REV. 348 LAW — Equal Education 3. Protection the Laws: Right, 26 FLA. U. LAW Not a Fundamental (1973). 155

REV. Independent District Antonio School 4.-San Rodriquez: Equal A Retreat Protec- v. from (1973). tion, 22 REV. CLEV: S. LAW 585 - - - 5. Independent District Antonio School San Rodriquez: Study Open A Alternatives

v. FRAN. REV. 90 8 U. SAN LAW Courts, (1973).

APPENDIX VI BUT CITED TABLE CASES EXAMINED NOT OF County Prince Edward 1. v. Board School Griffin 1226, 218, 12 U.S. 84 L.Ed.2d 256 377 S.Ct. County, (1964). 792, 335, 9

2. 372 U.S. S.Ct. Wainwright, v. Gideon (1963). 799, L.Ed.2d 483, U.S. 74 S.Ct. Education,

3. Brown v. Board L.Ed. (D. 1974). Supp. F. Del. Buchanan, 4. Evans v. (D. 1972). Supp. F. 1068 Md. Mandel, 5. Parker News, Virginia, Newport 6. Adkins v. School Board (E. 1957). Supp D. 148 F. 430 Va.

739 (D. 1939). Lowndes, Supp. F. 792 Md. Mills v. 26 7. (1959). 531, Fitzhugh Ford, 230 Ark. 323 S.W.2d 559 v. 8. (1929). Adams, 713, Ark. v. 180 23 S.W.2d 617 9. Webb (1927). Womack, 971, v. 174 298 S.W. 222 10. Ark. Ruff 571, Thompson, v. Ark. 211 S.W. 925 11. Krause 138 (1919). Feast, 157

12. and Fish Colorado v. Game Commission of (1965). 303, P.2d 169 Colo. 402 (1944). Masse, 183, v. 112 147 P.2d 823 13. Zavilla Colo. (1937). 106, Annear, P.2d 14. v. 100 Colo. 65 1433 Wilmore Moser, 149, People ex rel. P. Duncan v. 89 Colo. 299 15. (1931). 1060 (1927). People Stanley, v. ex 81 Colo. 276

16. rel. Vollmar (1909). People, v. 46 Colo. 239 17. Schwartz Hockaday Commissioners, County 1 v. Bd. Colo. 18. (1892). App. 362 (1901). Talley, 88, A. 3 47 1009 19. Husbands v. Penne. Quinn-Robbins Co., 1, P.2d 80 Idaho 323 20. Anneker v. (1958). 1073 Big Butte v. Board Educa-

21. Electors Area (1957). tion, 602, 78 308 P.2d 225 Idaho (1955). 146, Moon, P.2d 614 22. Davis v. 77 Idaho 289 241, 75 Dist. No. “A” Bullock v. Class School 23. Joint (1954). 304, P.2d 292 Idaho Dist. Independent District Common School 24. School (1942). 303, No. 64 Idaho 131 P.2d P.2d County, Idaho 25. v. Shoshone Scandrett (1941). Railroad v. Columbia 26. Idaho-Western Conference Augustana Synod, Idaho Evangelical Lutheran 568, 119 P. 60

740 City Crowe, App. 90, 27. v. Pana I3 Ill. 3d 299 N.E.2d of (1973).

770, Maurer, App. 633, Allen 28. v. 6 Ill. 3d 286 N.E.2d 135 (1972). Chicago Community Hospital,

29. Peters v. South 44 Ill. (1969). 22, 2d 375 253 N.E.2d Oswego 30. v. Community Smith Board Education of of High District, 143, School 405 Ill. 89 N.E.2d 893 (1950). 22,

31. v. Sloan School Directors District No. 373 Ill. of 511, (1940). 26 N.E.2d 846 32. Board Society Education Louisville v. Alumni of of of High School, Inc., Louisville (Ky. 239 S.W.2d 931

of 1951). County Goheen, 33. Board Education v. 306 Jefferson of Ky. (1948). 439, 207 S.W.2d 567 County 34. Madison Smith, Board Education v. 250 of Ky. (1933). 495, 63 620 S.W.2d Kentucky 35. Talbott Education, v. Board State 244 of Ky. (1932). 826, 52 S.W.2d 727 Garner, Ky. 157, (1910). 36. Elliott v. 140 130 S.W. 997 Griffen, 37. rel. Ky. 830, Commonwealth ex v. 268 105 (1937). S.W.2d 1063 County Fiscal Logan

38. Court v. Board Education of of Logan County, Ky. 98, (1910). 138 127 527 S.W. of 39. Prowse v. Board County, Education Christian for Ky. 365, (1909). 134 120 S.W. 307 40. Wilson v. Board Montgomery County, Education 561, (1964). Md.

234 200 A.2d 67 Maryland 41. ex v. State rel. Clark Institute the Pro- (1898). Arts, motion Mechanic Md. 87 643 Spring 42. In re Company, Cold Granite 460, 271 Minn. (1965). 136 782 N.W.2d

741 (1957). Hellie, Melby 17, 849 249 Minn. 80 N.W.2d 43. v. 31, 432, 224 Minn. Muehring v. Dist. No. 44. School (1947). N.W.2d 655 Lutheran rel. Board Christian Science

45. State ex v. Board Minnesota School Consolidat- Conference 3, 63, Minn. ed District No. N.W. School (1939). Paul, McSherry City v. 202 Minn. 277 N.W.

46. St. Cloudy Travers, Minn. 198 N.W. 47. & (1924). 457 82, City Paul, 128 Minn. ex rel. Smith v. St.

48. State of (1914). 150 389 N.W. Corporation, 118 North American Mont. 49. State v. Car (1945). 183, P.2d 164 161 Cooney, v. 102 rel. Dist. No. 29 Mont.

50. State ex School (1936). 521, P.2d 48 59 (1933). Trask, 1, 23 982 Perkins v. 95 Mont. P.2d

51. County, 87 Mont. ex rel. Henderson v. Dawson 52. State (1930). 122, 125 P. 286 Rockaway Rockaway v. Town- Board Education

53. of of Association, Super. 564, ship 295 Education 120 N.J. (1972). A.2d 380 Sills, v. Regional Education 58 Morris Board

54. West of (1971). 464, N.J. 279 A.2d 609 High Regional R.R. v. Board Education Shore 55. of of 337, 180 District, Super. 263 A.2d 109 N.J. School (1970). (1962). 189, Durgin Brown, 180 A.2d 136 v. 37 N.J.

56. Township, Ewing v. Board Education 57. Everson of of (1945). 350, 44 A.2d 333 133 N.J.L. (1895). 509, Ashworth, A. 1017 57 31 Landis v. N.J.L. 58. (Ohio Cincinnati, No. C-780001 59. Board Education of of 1978). 5, Pleas, September Ct. Common 742

60. Mercure v. Board Education Columbiana School of of (1976). App. 409, 49 Ohio District, 2d 361 N.E.2d 273 61. Board City Education Cleveland School District 15, (1973). App. 36 Ohio Gilligan, 2d 911

v. N.E.2d 507, App. 62. Smith v. Board 97 Ohio Education, (1954). N.E.2d 623 175, Green, 63. 160 Ohio St. ex rel. v. Core (1953). N.E.2d 157 345, Allais, App.

64. Dornette 76 Ohio v. 63 N.E.2d 805 (1945). 86,

65. Gigandet Brewer, 134 Ohio St. 15 N.E.2d 964 (1938).

66. Rapp District, v. Bethel-Tate Consolidated School App. 126, (1937).

Ohio 16 N.E.2d 224 67. City East City Cleveland v. Board Education (1925). District, 112 Ohio St. School 148 N.E. 350 68. Niehaus v. rel. City State ex Board Education Dayton, District of School 111 Ohio St. N.E. 69. Borough District, v. White Haven 397 School Searfoss 604, (1959).

Pa. 156 841 A.2d English 70. Township District, v. Robinson 358 School 45, (1947).

Pa. 55 A.2d 803 71. Braun v. Trustees Independent Victoria School of App., (1938). Tex. Ct.

District, 114 S.W.2d 947 72. Cowan Clay County Education, v. Board Tex. Civ. (1931). App., 41 S.W.2d 513 73. County Board School Trustees v. Bullock Common 12, App., Tex. Civ.

School District 37 S.W.2d 829 No. (1931).

743 Academy Independent Ferguson 74. v. Consolidated (1929). District, App., 14 S.W.2d 1051 Tex. Civ. School Rhea, App., Tex. 1070 Bloodworth v. Civ. 280 S.W. 75. (1925). (1882). Davis, City v. Tex. Fort 57 225

76. Worth 16, Emporia County Greensville, City v. 213 Va. 77. (1972). 189 S.E.2d 341 Norfolk, 252, Board 202 117 Kellam v. School Va. 78. (1960). 96 S.E.2d (1948). Gilmer, 1, v. Almond 188 Va. S.E.2d

79. (1934). Jones, Rogers v. W. 175 S.E. 781 80. 115 Va. Upshur County Board, High 94 W. 81. v. School Casto (1923). 513, 119 Va. S.E. (1976). Smith, v. 2d 247 N.W.2d 141

82. Buse 74 Wis. PAULEY, ETC., AL. H. ET V. TERRY GENE JOHN VIRGINIA, TREASURER, KELLY, STATE WEST OF AL. — NO. 14036 ET dissenting:

Neely, Justice, bright average law student first encounters When “political ques- will decide that courts not the doctrine other tions,” usually appears deference to it that such part judicia- cowardice on the authorities more statesmanship. How- anything passes ry which than power maturity recognition that has ever, brings a all grounds on the and I dissent inherent limitations its majority overstepped the of a court.1 has limits that development “political question” runs from doctrine The (7 How.) (1849) Morgan, Borden, Gilligan Luther v. 48 U.S. recog Supreme was Court asked to In Luther 413 U.S. govern opposed government Rhode nize a rebel Island original colonial charter. Court under ment established government they was not which state that could decide determined guaranty Congress power power had under but

744 supported public is an education area where the agencies government actively working other are while taking cognizance compelling yet competing of other im- peratives, among appropriate which an are included lev- Const, clause, delegated § art. it U. S. which had the Congress possessed President. The Court seemed that if to intimate power judiciary question the then the did not it since involved susceptible century conflicting Other not answers. nineteenth cases, Forsyth Hammond, (1897); Happer v. 166 U.S. 506 Minor v. (21 Wall.) (1875) sett, guaranty 88 U.S. 162 arose under the clause denying and followed Luther’s lead to the but extent relief recognized guaranty applied protect that the clause be could rights. However, individual in States Tel. & Tel. Co. v. Pacific Oregon, (1912), Supreme ques U.S. Court 118 held that government “republican” capa tion of whether state was not judicial resolution; yield guaranty ble clause did not itself to judicial power since that would “obliterate the division between judicial authority legislative power ...” U.S. at 142. At point provision tbat it seemed that the constitutional relied on justiciability approach determined but was abandoned Colegrove (1946) plurality Green, v. 328 U.S. 549 where the Court reapportion voting reasoning it held could not itself districts plainly granted questioned power Constitution to Con ought gress political and “Courts not to enter this thicket.” analysis decisively rejected Carr, at U.S. 556. This was in Baker v. (1962) 369 U.S. 186 where the Court clarified the one doctrine as “political questions” “political not cases.” U.S. 217. The question returned to Court the traditional of whether the constitu provision susceptible judi tional invoked was to translation into cially political rights. cases, question enforceable Other Coleman v. Miller, (1939); Chicago 307 U.S. 433 & S. Air Lines v. Waterman S.S. Corp., (1948), problem. 333 U.S. 103 evidenced the enforcement Deci Carr, Nixon, sions since Baker v. v. United States 418 U.S. 683 (1974); McCormack, (1969), Powell v. 395 U.S. 486 have remained rights, manageable standards, true to its doctrine of enforceable commitment, only one, Gilligan Morgan, and constitutional but (1973) (14th challenge training 1U.S. Amendment to the Guard), political question Ohio National has invoked the doctrine to nonjusticiable reasoning hold an issue that “it is difficult to con governmental activity ceive of an area of which courts have competence professional military judgments, subject [than] less ... always Legislative to civilian control and Executive political question Branches. 413 U.S. at 10. Thus doctrine evolved, sign provi not as an off-limits on certain constitutional sions, requirement manage but aas that courts consider whether judicial developed able standards can order to make certain judicially rights enforceable. infirm, ill, taxation, aged, mentally help for the el of upon along demands with the more mundane destitute sewers, treasury roads, public protection fire the such protection. police totally agencies government ne the other of Where entirely constituency glect the devoid of an needs of a political voice, example in as for Black citizens effective (1954), 1954, Education, Brown v. Board U.S. of patients ex Hawks v. mental health rel. (1974) Lazaro, _ W.Va. _, juvenile or S.E.2d State ex rel. Harris v. Calen status offenders _ may dine, _, (1977), 233 S.E.2d 318 it be W.Va. political proc- appropriate in the for a court to intervene authority interpretation the ess under constitutional political there effective alternative. These because is no however, bar, distinguishable from case at cases are the they presented susceptible by problems fact to the judicial management. In there those cited instances political participa- to were structural obstacles effective constituency only the which the courts tion abused political on of those to whom the could overcome behalf regard par- However, the process was foreclosed. with to now, judicial before as the ticular invitation to activism meeting constantly during Legislature has committees education; subject huge on there is a its sessions the bureaucracy carrying legislative out dedicated to the and, numerous, powerful, program; are active con- there routinely money time to devote stituencies who (as ineffective) lobbying education. well as effective Many judicial attempts to solve zeal excesses government analogized problems of to an effort water; part possession a reduce to of a balloon full to piece grasped the a the is towards whenever balloon develop bottom, bulge top. at the The courts there will balloon; do the the courts not have control of entire do and, money; tax; the appropriate do not courts not manpower expertise not to enforce do have the courts good will of other branches. their orders absent may prompt them to personal philosophies judges The balloon, attempt grab piece of but the water bulge which the court creates must be handled others then, bulge who often decline to handle it. If not handled, courts, they laughing unless are to become stocks, it, produce bulge, must handle which will another trying until courts are control the entire balloon. point being At that courts cease ad- courts and become Obviously they when ministrators. become administra- also, they ipso facto, judges will tors become of their separation powers. own causes and there ends the judges developed political This is what who question they spoke “judicially doctrine meant when manageable standards.” presents by parents attempt case before us an lawyers pry money interest more from the

Legislature avoiding while at same time the cumber- legislative/political process implica- some all with of the process something tions which that entails more appropriation money may than the mere of be forthcom- ing. originally brought, challenge As the suit did not incompetency, teacher nor the existence of an enormous interlocking statutory guarantees scheme which that se- curity position of for those within the educational estab- precedence lishment will take over the education of chil- statutory political dren.2 That scheme is the result of bargaining and through political must be corrected bar- gaining any legitimacy. if the is have result Mason exclusively consideration Schools, _ W.Va. _, nent the teacher’s written heard ^[1969] sufficient 18A-2-8 18A-4-2a membership county of employment Under certification); (teacher prior board County ^{[1969] [1977]} cause) Va.W. on to cancellation board, of (dismissal years and can be canceled certification); (state Board education becomes competency the board can be Code, and W. Va. school board for cause. the teacher must be experience resignation minimum and 18A-2-2 of school Education S.E.2d and if cancellation Va.W. Code, [1969], quality and educational or personnel); subjected 18A-4-2 [1977] and W. Va. “continuing” only (2) Code, supplemental a teacher’s contract with the v. State by majority given in one of two If training). 18A-3-3 cancellation is See W. Va. an Superintendent monetary opportunity after is also training vote of the full salaries based ^[1969] improper Code, W. ways: three Va. without (perma 18A-3-1 claims. (1) years Code, Code, to be vote (not by apparently “Thorough efficient” education does and just advanced mathe- in modern world not mean this foreign languages, compe- matics, chemistry, physics, English, spoken and a well-devel- in written tence history. Something knowledge more the form oped implied, training preparation for life is of vocational unmanageable yet is, far a standard whatever it it is too political give developed in a vacuum devoid of to be judicial mind, logical because inherent take “thorough any and efficient” education consensus about sys- value a difficult balance between irreconcilable is my I own ideas of what constitutes “thor- tems. have education; nonetheless, I am consti- ough and efficient” tutionally them down the constrained not to force persons equally well-informed who have throats of other judge. merely values because I am different Accordingly, Virginia edu as woeful as the West system is, judgment I would affirm the cation question within because the entire comes lower court “political question” set forth definition of a the classic (1962), Carr, where Justice Bren Baker v. 369 U.S. 186 question justiciable if it lacks that a is not nan indicated “judicially manageable standards discoverable resolving at 2173 it.” 369 U.S. considered, Thorough and Efficient Clause

When statutory aspects of edu along with other scheme hiring, cation, apparent political teach it should be question justiciability generally considered a of law While is increasingly judicial intervention, preliminary are to commentators justicia- recognizing fact-finding in the determination of a element public litigation, bility. issue, arising predominantly in law The envisaged “adjudicative” fact-finding in the tradi does not involve courts, private dispute of the but rather tional resolution function necessary appraise fact-finding “legislative” to assess involves party private viability While usual of alternative resolutions. (adju assessing past primarily litigation conduct concerned with is prospective litigation facts), public is concerned with dicative law facts) (legislative before the which must be ascertained conduct manageable Baker “judicially test of and generally standards” discoverable Judge Chayes, The Bole v. Carr can be met. See (1976). Litigation, L. Rev. 1281 Law 89 Harv. Public tenure, requirements,

er irrational certification lack of consolidation, considerations, and a host of other present impossibility deciding which would “the with policy clearly out an initial determination of a kind for nonjudicial discretion,” Carr, supra Baker v. impossible make it to decide these without issues “the potentiality pro of embarrassment from multifarious by departments question.” nouncements various one on Carr, supra Baker v. at 217. upon question

The can a courts act such as the one presented only possible remedy when this case it is by operating upon the situation an order discrete as- pect problem. any lower The courts will not find aspects problem of substandard which tak- schools alone, Thorough Clause, en under and Efficient can upon by thereby implying acted a court order without must, carry the courts in order out their man- date, they financing system run the If schools. find the they improper properly Legislature cannot order difficulty raise taxes. This latter “the involves inherent judicial process, arising especially limitations largely from negative its character and limited re- Army for Municipal sources enforcement.” Rescue Angeles, Court Los 331 U.S. Further- more, given problem suscepti- where facet of a total resolution, ble of aggravates, court but such resolution distorts, magnitude aspects or intensifies of other problem the total which must then be left resolution (the government, another branch of water balloon problem) dangerous possibility there is a of “a court’s undertaking independent expressing resolution without respect ... government.” due coordinate branches of Carr, supra Baker v. at 217. inability many courts’ to resolve issues compounded by

such the one problem before us is representation. litigation interest Public law has wide and, impact therefore, representa- seems to necessitate resolution; tion of all who will be affected its howev- er, yet identify- no reliable criteria have been found for ing interest, “apart the affected from the decibel of the Judge in Public Law Chayse, the The Role protest.” of (1976). It should L. Rev. 1281 at 1311 Litigation, Harv. necessary to traditional adverseness the be obvious envisaged the issues” “[sharpen] presentation defendant is the named absent when Baker v. Carr least, or, very ambiv- reality adverse not either us; certainly the obviously the case before alent. This is Education, Treasurer, State Board State “thorough are all favor Superintendent of Schools party, if there The adverse efficient” education. a named defendant one, taxpayer who is not is the naming effectively represented cannot even be Speaker the House of President Senate Delegates. I dissent that must

Consequently, it is with reluctance colleagues, I my not because opinion learned from they the condition West outraged than about less am nor schools, I am neither Governor Virginia but because hope that I would Legislature. remand On the entire investigation to an confine itself court does not lower alone; are financing the children problem of school courts are inquiry if the than to a better entitled should question. The lower court get going to into majority opinion, suggested in the investigate, con- demonstrate need to relationship of tenure without per- on are not based competence, salaries which tinuing curricula, poor consolidation, inferior formance, lack of ingredients com- which other discipline, and a host of develop- Only adequate after problem. prise the total finance be the issue of problems will those ment of all perspective. proper being placed in capable of

Case Details

Case Name: Pauley v. Kelly

Court Name: West Virginia Supreme Court

Date Published: Feb 20, 1979

Citation: 255 S.E.2d 859

Docket Number: 14036

Court Abbreviation: W. Va.