*1 not entitled to from our offi- more elected Apparently

cials? not. S.E.2d

STATE West ex rel. Diana Friends,

LAMBERT, By Her Next Kath- Lambert,

leen LAMBERT and Hobert

Petitioners,

The WEST STATE VIRGINIA BOARD OF

EDUCATION, Corporation, and The Virginia Secondary Schools Activi- Commission, Corporation, Respon-

ties

dents. 22225.

No.

Supreme Appeals Court of Virginia.

Submitted June July

Decided *2 Charleston, Hedges, petition-

Daniel F. ers. Gen., Dalporto, Atty.

John Asst. S. Charleston, West respondent of Educ. State Bd. Wooton, Wooton, & R.

William Wooton Fragile, Beekley, Virgi- respondent West Secondary nia Activities Com’n. Schools WORKMAN, Justice: Petitioners, proceeding, the original In this parents, Diana and her Kathleen Lambert Lambert, seek a writ of manda- Hobert Respondents, Vir- against mus (hereinafter ginia Board of Education Board) to as the and West referred Secondary nia Activities Commission School 1) (hereinafter SSAC), referred to as compel general the Board to exercise the authority pursuant Arti- supervisory it has XII, cle 2 of the Constitu- tion1 extracurricular athletic and ner over band for her vocational classes3 or her extra- activities, declare West curricular activities. 18-2-25 unconstitutional that the participated Ms. has Lambert attempts statute or divest transfer grade, sixth athletics since for the *3 general supervisory Board’s constitutional Guyan Valley High School’s basketball authority the to boards education during sophomore team her freshman and 2) SSAC; and the to order the Lincoln Coun- years signer. a Ms. without Lambert’s ty provide Board of Education to Diana Lam- coach, Nelson, affidavit, Jim in an stated bert, Guyan Valley High a deaf student at 31, 1994, May, dated that he knew of her County, Virginia, School in Lincoln West disability prior high to when started she signer with a participate so that she steps school and he took several in order to activity the extracurricular of basketball dur- needs, including special obtaining meet her 3) ing year; the 1994-95 school and to order speech pathologist assistance from a student permitted girls that be to schedule their ex- effectively so that he would know how tracurricular basketball within activities the with her. communicate Ms. Lambert’s fa- traditional normal winter basketball season frequently practices ther also attended and boys’ which basketball is and fur- interpret on daughter. occasion would for his girls ther order afforded junior during year, October her boys appropriate access with the facilities suggested Mr. Lambert to Coach Nelson that in the practice schools for basketball signer might a be of daugh- assistance his games. upon parties’ and Based briefs ter having because she was trouble under- arguments, the record and all other mat- standing coach’s During directions. Court,2 grant ters submitted before this we month, spoke same Coach Nelson with Mr. sought by the writ Petitioners re- Smith, Doug Special Director of Education gard signer to the and the County, possibility for Lincoln about the of a season; however, deny we the writ as it Lambert, signer for Ms. and informed Mr. constitutionality of relates to the go- Smith that Mr. and Mrs. Lambert were nia Code 18-2-25. Because the Petition- ing request signer to make a for a for their separate ers raise three distinct issues in 19, 1993, daughter. October Ms. On Lam- petition, we sepa- address each issue Winters, principal, “Skip” bert’s Paul re-

rately. ceived request a from Mr. Lambert for a signer. Mr. Winters referred Mr. Lambert REQUEST FOR SIGNER to Mr. Smith. Neither Ms. Lambert nor her eleventh-grade parents Diana Lambert is an stu- ever contacted Mr. Smith. Ms. Guyan Valley High dent at in Branch- provided signer. School Lambert was never with a land, County, Virginia. Lincoln She She was dismissed from the basketball team signer by has been just deaf since birth and has a prior post-season Coach Nelson courses, provided her basic but sig- play is not a tournament the end of the season.4 significant original- disability 1. It is to note that the Board due to her in that could she not under- ly position take a contrast, failed to the issues in on stand the coach’s directions. Court, present by case. This order dated June Respondents assert that Ms. Lambert's dismissal participation. ordered the Board’s playing stemmed a from reduction in time due to sustained, injuries ultimately she had re- 2. Amicus curiae briefs submitted the West engaging sulted in Lambert Ms. misconduct Virginia Women's Commission and the West Vir- disciplined due to her frustration. Coach Nelson ginia Rights Human Commission were consid- misconduct, her for the which resulted in Ms. rendering ered Court in its decision. Lambert's dismissal from the team. remains, regardless why the fact request by Ms. The record before us no reflects team, provided Lambert sig- Ms. was dismissed from the she did Petitioners that Lambert be a therefore, request signer ner for her vocational courses the assistance of a for basketball potential Furthermore, do practices games. not address this issue. Coach Nel- subsequently son informed Ms. Lambert that she why dispute factual There is a as to Ms. Lam- play year. could her on team senior bert was dismissed from the basketball team. The Petitioners maintain that the dismissal was children.”). IDEA, imple- handicapped according to Petition- In December regulations, brief, the code federal Petitioners’ counsel stated mented ers’ public agen- provides that approached specifically “[e]ach Mr. Smith about the Petition- he signer, steps provide nonacademic request cy and was informed shall take ers’ Lambert would not be afforded services and activities that Ms. and extracurricular By necessary afford chil- signer. letter dated March manner as is such Henry inquired equal opportunity of Dr. R. counsel disabilities6 an Petitioners’ dren with Schools, Marockie, Superintendent of and activi- participation those services (foot- 300.306(a) (1993) why Ms. Lambert had not been afford- as to ties.” 34 C.F.R. added). responded to signer. Additionally, Dr. Marockie first the Rehabilita- *4 1, 1994, (1985 by 34 April Supp.1994), implemented that “Diana Lambert dated and (1993), signer or appear provides § to be entitled to a 104.37 does C.F.R. County assistance from the Lincoln some (1) (a) recipient7 A to General. of Education for ... extracurricular nonaca- subpart applies provide this shall courses[,]” Dr. Marockie also stated that “her and ac- and extracurricular demic services my jurisdie- is [Ms. Lambert’s] claim outside necessary to in such is tivities manner as tion[,]” and that the SSAC should be contact- equal op- handicapped an afford students remedy. letter dated ed for participation portunity for in such services Barone, Di- April from Victor A. activities. and Legal rector of Services for the West (2) Nonacademic extracurricular and Education, Department of Ms. Jan nia may ... and include services activities Pannett, Secretary of the Assistant physical recreational athletics.... Barone indicated that he had advised the Mr.

Petitioners’ counsel he was not sure claim the Petitioners’ was outside (c) Physical and athletics. education jurisdiction request- and that he was Board’s (1) physical courses providing education County Superintendent ing that the Lincoln programs and and and athletics similar matter. look into the students, recipient any of its activities to subpart applies not dis- The Individuals with Disabilities Education to which (1989 handicap. A Act, §§ 20 1400 to 1485 and criminate on basis of U.S.C. (hereinafter education Supp.1994) recipient physical to as the that offers referred “IDEA”), support operates sponsors inter- requires types of or that or certain courses scholastic, club, or athletics for handi intramural and accommodations services qualified handicapped stu- special provide and with capped students children shall needs, charges opportunity partic- for educational an and also state dents responsibility ipation full for im in these activities. agencies with the plementing regulations handicapped stu (footnote 104.37(a) (c)(1) § 34 C.F.R. 1412(6); general 20 U.S.C. see dents. See added); §§ 12101 to generally 42 see U.S.C. Dist., ly v. Catalina Foothills Sch. Zobrest (Americans (Supp.1994) with Disabili- 12213 - U.S. -, -, 2462, 2469, 125 113 S.Ct. 1990). Act of ties (stating “[t]he L.Ed.2d Board ac- conceded and the government program The SSAC IDEA creates a neutral responsi- full knowledged that the Board has not to but to individual dispensing aid schools "any “recipient” state or its is defined as agency individualized edu- 7.A Public includes subdivision, agency, program, instrumentality local state educational of a political any cation agency, “any political sub- other educational subdivision, political any or or its state responsible for of the State that are divisions institution, organization, agency, or other private with disabili- providing education children person entity, financial or which Federal ties.” 34 C.F.R. 300.14. through directly anoth- is extended or assistance successor, assignee, recipient, including any er a child with Children with disabilities includes recipient....” 34 C.F.R. of a or transferee impairment. hearing See 34 C.F.R. deafness or a (1993). 104.3(f) (1993). § 300.7 bility implementing Winters, these federal statutes principal, Mr. Ms. pro- Lambert’s dealing well as the state daughter signer. Further, statutes vide his with a disabled §§ individuals.8 See affidavits W.Va.Code 5- submitted the SSAC indicate (1994 (West 11-1 to -19 Supp.1994) spoke that Coach Vir- Nelson with Mr. Smith ginia Rights regarding Human Mr. prohibiting request. Finally, Act discrimi- Lambert’s upon nation handicap places pub- spoke based the Petitioners’ counsel with not Smith, accommodation); lic Mr. generally but also with Dr. see Marockie about W.Va. (West §§ request signer. C.S.R. 77—1—4.4 Petitioners’ to -4.5 Human Rights regarding Commission’s rules requests Given that all these were made to discrimination in employment against arena representatives various of both the handicapped). Indeed, pro- the Board has Board, board of education and the the Re- mulgated following policies pertaining to spondents predicate continue to you individuals with “If disabilities: are provide Ms. signer Lambert with a for the handicapped ... special and in need of edu- upcoming 1994-95 basketball season on an services, your cation and parents related or request being “effective” made Ms. Lam- guardian county’s should contact the Director parents bert’s to Mr. Respon- Smith.9 The Education!,]” Special student, and “As a position dents’ unpersuasive seemingly *5 you may not right partici- be denied the law, based neither the nor in basic com- pate in extracurricular activities because of sense, mon but in tape. bureaucratic red It your disability....” ... Policy State Board is understandable that a disabled individual’s 4372, Student Rights Handbook of and Re- request processed by must be the director of sponsibilities, Further, §§ II and IV. special county education within a so that Policy Board following pro- includes the investigated coordinated; services can be sexes, vision: “Members regardless of both incomprehensible but it why is request that race, color, religion, their handicapping can parent made the to the di- condition, age origin, or national must be special education, rector especially where granted equal access to extracurricular activ- the director learns of request. the It is ities.” 9 apparent oftentimes, W.Va.C.S.R. 126-82-3.4. present as in the case, parent request a will assistance ob- present case, In the the Board and the taining services for a disabled child from a agree SSAC if “effectively that Ms. Lambert teacher, principal, logical or coach. It is also requested signer,” the “upon assistance of a that each of these individuals be more request investigation, [if] the assistance needs, familiar with the student’s and better signer of a is deemed a reasonable accommo- explain able to necessity the special for the dation, necessary provide the student with special assistance with a director of education activities, access to extracurricular parent. Finally, than the policy while the then she is entitled to such assistance.” The the provides student’s handbook re- Respondents rely heavily on their contention quests for for handicapped services individu- that Ms. parents officially Lambert’s never als must be parent, made no other requested signer a County from the Lincoln provision contained within either state or Special Thus, Director of Education. regulations federal statutes or imposes such Respondents position continue to assert the requirement a requests. on these See State request that a provide was never made to a Policy supra, Board §at II. signer for Ms. Lambert extracurricu- activities, lar accordingly signer a was Accordingly, we hold that when a stu However, provided. never Respondents disability requiring special dent has a assis inexplicably acknowledge refuse to that Mr. tance or services to participation enable requests Lambert made of Coach Nelson and activities, school-sanctioned extracurricular though The Board fairly indicates that even it is the It is peti- incredible that even after this responsibility promulgate poli- Board's these brought tion was Supreme in the West supervise implementation, cies and to it is Appeals, Respondents Court of continued to county responsibility board of education’s recognize request. no "effective" requests handle the for services a handi- student, capped provide and to said services. season,10 girls’ orga- but also limit the request or services can be ketball for assistance any practices made on the student’s behalf to half time allotted to nized needs. official familiar with the student’s against girls on boys,11discriminate the basis responsibili- That school official then has the III, gender in violation of Article of their ty to inform the board education’s Constitution12 and 10 of the West special request so director of education Act, Rights Human appropriate action can be taken. (1994).13 §§ 5-11-1 to -19 brief, it its contends while ease, present we conclude that is the Board’s decision as to when the requests direct and indirect were made both played, place- seasonal basketball season that Ms. of several different school officials dispositive question ment alone is not provided signer Lambert be with a for the Further, have been denied of whether female athletes upcoming basketball season. since County equal protection Board of Education has under the law.14 the Lincoln already determined that Ms. Lambert needs gave opportunity pres- an We the Board classes, signer basic academic there her any us with information which would ent necessity generally would be no for the justify the continuation of the current sched- investigate request Board to further her limitations, uling system, facility per- such as signer for extracurricular activities as well. constraints, sonnel or financial or other ob- Therefore, County Lincoln we direct provided no stacles. provide Board of Education to her with a information, they such nor did enunciate signer for her school-sanctioned extracurricu objective compelling governmental activity lar of basketball. system. might by the current be served

GIRLS’ BASKETBALL SEASON fact, Board, finally posi- when it took a *6 tion, agreed with the Petitioners that

The Petitioners next contend that the changed to girls’ basketball season should be SSAC, only directives of the which not re traditional basketball sea- coincide with the quire girls play their basketball son, merely requested this Court games the traditional basketball sea outside year implement the schedul- during son rather than the traditional bas allow them a sex, handicap.” 10. Virginia only age, of five which blindness or W.Va.Code is one states in found that for the girls' rather 5-11-2. This Court Israel schedules basketball the fall Act, "place purposes a of of the the SSAC is the winter. than 463, public 388 accommodations.” 182 W.Va. at Further, syllabus point 2 of S.E.2d at 489. in organized prac- girls 11. The have two weeks of v. West Human Education of tice, boys organized have four weeks of while Commission, 41, Rights 182 W.Va. 385 S.E.2d practice. (1989), of edu- 637 we held that a board " 'place considered a of cation was not III, ” 12. Article 10 of the West Constitu- accommodations,' "may public but that it not person deprived provides shall be "[n]o tion against handicapped in violation discriminate life, process liberty, property, of or without due W.Va.Code, 11—9(f),as amended." See 6 of 5— law, judgment peers.” and the of his This of § 77-1-7.2 and -7.4. W.Va.C.S.R. syllabus point 4 of Israel ex rel. Israel v. Court Virginia Secondary West mission, Schools Activities Com- argues also that the issue concern- 14.The SSAC 454, (1989), 182 W.Va. 388 S.E.2d 480 ing constitutionality placement of the equal Virginia's that "West constitutional held is now moot since the basketball season principle part protection of the Due Process is change the season from the Board has voted to III, found in Article Section 10 of the Clause disagree; We the issue has fall to the winter. Constitution.” since, fully a court been resolved without not order, may change time the Board at equal protec- We resolve this issue under the policy, season and revert the claim, fall, finding girls' implement basketball sea- tion that the back to the or decide not Israel, 1, gen- currently policy Syl. exists is unconstitutional 182 son as it new at all. See also Ft. 455, ("while it is clear S.E.2d at 481 techni- der-based discrimination. W.Va. at 388 context, Rights questions cally also the West Human Act moot in the immediate public public ad- guarantees "equal places great ac- nevertheless be access to interest guidance regardless of the bar and of dressed for the future commodations” to all individuals "race, color, ancestry, public”). religion, origin, national ing change. position “[e]qual The Board took no on 388 S.E.2d at 482. We held that constitutionality scheduling. How- protection implicated of the law is when a ever, promulgated by state rules the Board similarly persons classification treats situated relating equal opportunities in West 455, disadvantageous in a manner.” Id. at public nia schools the area extracurricu- 2, Syl. part. at Fur- S.E.2d Pt. expressly lar activities mandate access ther, gender-based “[a] classification chal- to extracurricular activities for both sexes. lenged denying equal protection under -3.5.2; See 9 126-82-3.4 to W.Va.C.S.R. III, Article Section of the West Policy supra, see also State Board at upheld only Constitution can be if the classi- § IV. important governmental fication serves an argument premised The Petitioners’ objective substantially and is related to the 22, 1992, upon a letter dated March from Dr. Id., objective.” Syl. achievement of that Pt. Carter, Maroekie to Mr. Warren Executive part. SSAC, Secretary of the which indicated that study though recognized Even “[t]he Board wants to have a definitive Israel that completed impact changing on the recognized [the other “courts have that it is con- girls’ basketball from fall season] to winter. stitutionally permissible under certain cir- They directed that [the Board] Dr. Keith cumstances for schools to maintain complete Smith work with the SSAC separate sports teams for males females bring to the Board the information on the long they substantially so equiva- are girls movement of tbe season from fall to lent[,]” we also stated that “this does not Further, Board, requesting winter.” superficial equivalency mean that mere will study, such it indicated that was interested in equal protec- be found constitutional under “shifting the season from fall to A winter.” principles.” tion Id. at 388 S.E.2d study was undertaken but 485. We then examined the similari- study completed, after the was the Board did ties and differences between baseball and season, position changing not take on reaching softball before the conclusion that quo. and the SSAC maintained the It status sports substantially equiva- the two not were was not until after the Court ordered the lent. Id. at 388 S.E.2d at 485. We position Board to scheduling take on the regulation prohibit- concluded that the *7 season, girls’ basketball that the Board playing ed a female student from on the 16, special meeting conducted a on June boys’ long baseball team as as the school “(1) adopted stating and a motion girls’ maintained a softball team violated fed- girls’ basketball should be within the equal protection eral and state constitutional normal winter basketball in season which standards. Id. at 388 at S.E.2d boys’ played, basketball is and that the November, 1994, develop, by plan board by principles Guided

implementing change.” enunciated this Israel, in scheduling girls’ we examine the This Court addressed the issue of season, basketball in the nontraditional as gender-based pub whether in discrimination opposed scheduling to the traditional when sports equal protection lic school violated the girls’ majority basketball is in scheduled Virginia clause under the West Constitution states, along boys’ with basketball and Virginia Israel ex rel. Israel v. West Sec basketball, college men’s and women’s and Commission, ondary Schools Activities 182 professional scheduling basketball. The (1989). Israel, 388 W.Va. S.E.2d 480 girls’ high school athletics in a manner which high brought gen a female school student significant is counter-conventional creates against der discrimination claim the second disadvantages for female athletes which are ary school activities commission and the not shared male athletes. These disad county board of. education after she was re vantages include from in effective exclusion opportunity play boys’ fused the to on the tournaments, high competition terstate and since high school baseball team because her girls’ surrounding including Pennsylvania, school had a softball team. Id. at states Ohio, Maryland Virginia,15 scheduling girls’ high school Kentucky, and Since the girls’ basketball the winter. period schedule season outside the time basketball Also, players of female basketball are more traditionally as the official basket- observed disadvantage regard college ten at a with important governmen- ball season serves no Further, access.16 female basket recruiter objective, it as it tal is unconstitutional vio- players gyms are afforded access to ball equal protection set lates the clause forth organized practices for two weeks dur III, § Article 10 of the Consti- months, ing opposed hot summer to the hereby tution. direct the Board to We sub- organized practice four weeks of time afford mit to this Court November its players during ed male basketball the late change girls’ plan to basketball season to Finally, fall and winter months. because the beginning the winter with the 1995-96 school girls currently play do not the tradi year. season, they reap tional do not the benefits normally which come with the traditional sea CONSTITUTIONALITY OF SSAC son, including greater interest basketball public, college Finally, media we address recruiters. whether West Perhaps compelling more than unfair 18-2-25 which Code establishes players ness to actual female basketball grants authority county the SSAC and conveys message girls this scenario control, supervise boards of education to second-class, general, girls’ sports are events, regulate all interscholastic athletic boys priority sports take as to use and other extracurricular activities resources, girls facilities and take the XII, secondary system school violates Article Hence, leavings. message conveyed Constitution, § 2 of the West young girls they in this state is that are not general supervisory establishes the Board’s important boys. as the powers state. over the schools Petitioners Code contend Therefore, scheduling we conclude that the § 18-2-25 is unconstitutional in that it effec basketball in the nontraditional sea- tively son, transfers the Board’s constitutional organized prac- as well as the access to supervise system tice time afforded to basketball teams county boards of education. See superficial equivalency.” constitute a “mere SSAC Const, Israel, XII,- contrast, at 485. art. 2.17 In W.Va. S.E.2d W.Va. Virginia, girls’ up group essentially system. 15. In basketball is set under a a self-selection system, two-tier with teams from schools with West 18-2-25 does establish a 1,000 playing membership system less than students enrolled in the which is sex-neutral on its 1,000 greater face, and those with than by providing fall students “shall that the SSAC be com- playing enrolled in the winter. posed principals, representatives” or their which have of those boards of education 16. The SSAC submitted the affidavits of Paul delegated supervision of extracurricular ac- Flores, University girls’ California *8 §§ to the SSAC. See 9 W.Va.C.S.R. 127- tivities coach, Gaudino, and David Director of the West Further, the SSAC main- 1-4 to -1-6 and -1-8. Virginia Girls’ Basketball Poll and the assistant presently tains that it has two female officers and School, High who coach for John Marshall both twenty-seven male officers. change girls' indicated that a basketball Additionally, Virginia Code of while the West season from the fall to the winter would be Regulations provides eligible be ”[t]o detrimental to female athletes. there participation a stu- for in interscholastic athletics Leigh an affidavit submitted Sarah was also dent must be enrolled in a member school on or Evans-Moore, the head bas- coach women's day of the se- before the eleventh instructional University, ketball at Marshall who indicated that competes!,]” he the term "mem- mester which present scheduling, girls under the in this state school” is not defined. 9 W.Va.C.S.R. ber disadvantage recruiting are at a when it comes to represent- Respondent § 127-2-3.1. The pro- college Division I women's argument only not ed to the Court oral grams due to the fall schedule. secondary did not have to be a schools participate in member of the SSAC to interscho- part argument, the 17. As of their constitutional going sports, but also that the SSACwas to improperly lastic stop collecting the SSAC Petitioners assert that composed charged membership dues only Specifically, males. the Peti- of argue twenty-nine the SSAC. tioners that the SSAC’s offi- since, according Respondent Finally, to the cers are all male. The Petitioners further stated brief, argument approximately a closed SSAC's students in oral that the SSAC was 50% argue Respondents argue The Petitioners West West § county § 18-2-25 does not divest the Board of Code Code 18-2-25 allows boards of edu- generally supervise its constitutional usurp cation and the SSAC to the Board’s Further, Respondents the state schools. statutory duty generally constitutional and delegate any assert that the statute does not supervise provides, the schools. That statute authority it to the SSAC nor does vest exclu- pertinent part: authority county sive boards of education county The boards of education are respect regulation to the of extracurric- hereby granted and shall exercise the con- recognized by ular activities as the Court in trol, supervision regulation of all inter- Bailey Truby, v. 321 S.E.2d 302 W.Va. events, scholastic athletic and other extra- (1984). Respondent po- The Board took this pub- curricular activities of the students in sition ordered it do so. after Court schools, secondary lic and of said schools of acknowledges in essence that it is SSAC respective county counties. The respect under the direction of the Board with may delegate board of education such con- constitutionally responsibili- to its mandated trol, supervision regulation of inter- ties. scholastic athletic events and band activi- XII, § 2 Article of the West Con- Virginia secondary ties to the ‘West school general super- that “[t]he stitution mandates commission,’ hereby activities which is es- vision of the free schools the State shall be tablished. vested in the of edu- board Virginia secondary ... The West school perform cation which shall such duties as hereby empowered activities commission is prescribed by conformity law.” In control, supervision to exercise the mandate, with this constitutional regulation of interscholastic athletic events provides: nia Code 18-2-5 secondary schools, and band activities of Subject conformity with the delegated pursuant it to this section. state, constitution and laws of this regulations The rules and the West gen- state board of education shall exercise Virginia secondary school activities com- supervision public eral schools of the shall, mission ... ... in all instances be state, and shall make rules accordance subject prior approval to the the state provisions with the of article three-b board. seq.], chapter twenty-nine- [§ 29A-3B-1 et carrying a of this code for into effect the added). (emphasis W.Va.Code 18-2-25 policies relating laws and of the state argument The Petitioners’ is flawed for education, including relating rules to stan- several reasons. The fail Petitioners to ac- performance dards for and measures of knowledge language the existence of in West accountability, physical pu- welfare specifically 18-2-5 which

pils, the of all education children of school provides gen- that the Board “shall exercise attendance, age, evening and contin- supervision eral schools of the schools, day part-time uation or school ex- state, ... carrying and shall make rules work, schools, tension the classification of policies into effect laws of of the state credentials, issuing upon of certificates education, relating including gen- ... the distribution and care of free textbooks powers county eral and duties of boards of education, county boards of ” education.... The Petitioners also fail to general powers and duties of *9 education, teachers, acknowledge significance following the prin- boards of and of § provision of 18-2-25: cipals, supervisors superintendents, West Code regulations “The rules and pertaining and such other matters to the West secondary nia school activities commission schools of the state as seem to subject necessary expe- ... shall ... in all the state board to be instances be prior approval dient. the of the state board.” See female, SSAC, Virginia's secondary certainly in West schools are it would behoove the SSAC to partici- greater representation manage- many and since of those female students seek female in its pate governed by making. in extracurricular activities the ment and decision county boards of (setting curricular activities with the § 18-5-13 also W.Va.Code boards). at 311. Id. at 321 S.E.2d authority To over- education.18 forth of school First, § is not Virginia Code 18-2-25 statutory provisions is to disre- West look these dealing with located in the article of the code Legislature the gard the clear intent of county function of boards county the structure and over the boards the ultimate control education, located within the education, with but rather is as well as the rests Id. pertaining article the state board. Board. the Thus, Legislature that “the we concluded Additionally, prop- failed to the Petitioners that, prior assumed to the enactment West erly analyze Bailey, this Court’s decision § ... con- Virginia Code 18-2-25 exclusive indirectly where we addressed the constitu- in the trol of extracurricular activities vested § tionality 18-2-25. of West Code Second, we State Board of Education.” Id. Bailey, at 302. In 174 W.Va. at 321 S.E.2d portion referenced not of West Vir- concerning actions we consolidated two § ginia 18-2-25 which created the sec- Code validity eligibility requirements of academic commission, ondary school activities but also participation in activities. extracurricular gives the portion of the statute which action, County Board the first the Wood all approval state board final over rules sought a writ of mandamus to of Education regulations secondary activi- enacted compel to withdraw a rule the state board Id. found that ties commission. We grade requiring students to maintain a “C” secondary Legislature’s creation average participate point order to extra- activities commission- to which the school action was curricular activities. The second county delegate authori- school boards could appeal by high school student from a an activities, ty regarding extracurricular injunctive sought prohibit denial of relief retaining ap- final well as the state board County Board of Education the Kanawha proval secondary activities over the requiring passing to receive rule students Vir- commission’s actions indicated West classes, grades in all in addition to of their ginia not intended to Code 18-2-25 was they requirement maintain a 2.0 county exclusive con- vest school boards with participate grade point average, in order to support trol. final factor used to Id. The at in extracurricular activities. Id. regarding Virginia Code our conclusion S.E.2d at 305. of other statu- 18-2-25 was “the existence Bailey petitioners contended tory provisions governing the interrelation- Legislature, enacting “the Education ship between the State Board of ... intended to vest exclu- 18-2-25 county indicates that boards of education county authority boards of education sive county Legislature permit intended regulation respect to the of extracurric- regulation of extracur- of education board[s] ular activities.” Id. at 321 S.E.2d subject super- general to the ricular activities argument, rejecting petitioners’ Id.; Board of Education.” vision of the State “[f]irst, stated that such a result does not §§ 18-2-5 and 18-5-3. see W.Va.Code appear Legislature intended. to be what the Board’s con- subsequently affirmed the We Second, even if such a result was intended generally supervise the stitutional Legislature, it must fail to the extent that from the schools without interference of Edu- it interferes with the State Board Edu- Legislature in West Board of supervision general over cation’s exercise Heckler, 180 W.Va. 376 S.E.2d cation v. system.” Id. our state’s educational (1988), the constitu- where we addressed requiring tionality statutory provisions then discussed several factors We legislative approved Legislature did not Board to submit indicated to us that the oversight commission created extra- rules to an intend to vest exclusive control over delegate supervi- of education to Manchin v. West boards 18. But see State ex rel. Comm'n, Secondary 178 W.Va. Sch. Activities activities to a commission such sion of certain *10 ("There (1987) S.E.2d 27 are or, so, 364 permissible extent of such the SSAC if the troubling that are not before other more us, issues delegation."). legislature may authorize such as whether the NEELY, Justice, Legislature dissenting part: for that stat- in the review. Under review, ute, commission, oversight upon the My personal year clerk this is a law wom- required Legisla- was to recommend the string an who on the first Harvard promulgate ture either the rule in whole or Therefore, my team. tennis office is not part in or recommend of the rule. withdrawal entirely ignorant of the interest that women Legislature If the failed to act on a rule sports, in have but Christmas dinner is sel- commission, oversight the submitted then delayed dom in America because wives and prohibited taking any the Board was from sitting mothers are around the television set 452-53, watching games. further action on the rule. Id. at declaring provisions S.E.2d at 840. those government All rationing of involves the of unconstitutional, syllabus in Court held scarce A resources. first best solution to point “[r]ule-making two of Heckler that the problems always requires most the existence by the State Board of Education is within the A, B, C, world, of D and E. real meaning ‘general supervision’ of state however, A, B, C, usually don’t have D XII, pursuant schools to art. 2 of the West Therefore, simultaneously. Eand we must Constitution, statutory accept a “second best” solution and decide provision that with such B, C, E; A, B, interferes rule-mak- whether we want D and andC D, ing D; E, B; is unconstitutional.” 180 W.Va. at A and or some other combina- Syl. part. missing Pt. in tion with a S.E.2d letter.1 basketball, In the moving case of Following Bailey our decisions in and He- girls’ schedule from the fall to the winter ckler, notwithstanding we hold that might spending money involve substantial on supervisory authority transfer over inter- light intensity new athletic facilities scholastic athletic events and other extracur- community boys’ support basketball. ricular activities to boards of edu- money basically Given for education is cation and the Code fixed, regular as the defeat of excess levies constitutional, § 18-2-25 since it is demonstrates, days clearly money these Legislature, enacting clear that said for new athletic facilities has to be taken statute, only permit county intended to someplace comput- from else in education — super- boards of education and the SSAC to ers, instruction, foreign language vocational regulate vise and to extracurricular activities training, technical or science facilities. subject to the Board’s under Article The fact that women are to men does XII, § 2 of the West Constitution to exactly not mean that women are like men. generally supervise the schools in this state. jackasses if Wouldn’t we look like we were to agree giving to enter a court order all males foregoing, Based on the the Petitioners’ ages of 20 between and 40 four months of granted regard writ of mandamus is pregnancy every years simply leave three request signer change for a and the regularly given because such leave is to wom- season; however, Although in en? some future world that we writ is it denied as relates the constitution- conjure up fantasy, sports women’s ality of West 18-2-25. might teams draw the same kinds of crowds hereby provide Board is ordered to Ms. draw, sports that men’s teams that is certain- signer Lambert with a for the 1994-95 bas- ly today. many people not the case How season, change girls’ high ketball and to pay apiece would to watch the best wom- $4 beginning school basketball season with the en’s basketball team West Universi- year, submitting 1995-96 school to this Court ty produced play comparable ever team plan implementing change by its said answer, course, from Indiana? The is that November nearly many there wouldn’t granted part; part. comparable Writ denied men’s team. And what be- Lancaster, (1956-57). Lipsey Theory & "The General ll-33 Best,” Second 24 Review Economic Studies *11 speaks political capital is a market decision made millions this case where there is no expressed collectively being “against individuals to be made women” are all the through programs money demand tickets women’s users of school from which if, sports very high community indeed, moving do not have a will be taken women’s priority. budding basketball to the involves the winter many gyms augmentations more or other might Now all of this sound like the be- sports-related costs. nighted rantings person nostalgic of a for the nonetheless, Century; go 19th if we to most

working class schools small towns where life,

the school is the center local social problem having boys

will see that if there is a

play gym in the winter because

space apportioned must be between men and women, gym fact, a new will be built! 447 S.E.2d 912 political vigorous sentiment in favor of a The McDOWELL COUNTY BOARD (and sports program boys cheerleading Petitioner, OF EDUCATION girls) at the local level is so intense generally athletic prece- facilities will take v. laboratories, computers, dence over science STEPHENS, Judge Honorable Booker T. instruction, foreign language vocational tech- of the Circuit Court of McDowell Coun- compensatory nical reading pro- facilities and ty, Campbell Melanie Church and Wen- grams. That’s the real world! dy Burks, Respondents. Emazetta Although scrutiny after detailed No. 22050. high sports my facts of none of fears justified, determining when Supreme Appeals Court of basketball should be is a decision to Virginia. be made State Board Education Submitted Feb. Consequently, the first instance. I find the majority’s holding that there cannot be a July Decided sufficiently compelling governmental reason justify playing girls’ boys’ sports contrary different seasons to be to the best

interests of education. We must assume that

the State Board of and local Education

boards of education are as concerned about are; indeed,

gender fairness as we the State pressure

Board under the of this lawsuit has tentatively

concluded that there no reason If, merge boys’

not to seasons. politi- or in

either on the merits deference to pressures

cal Board determines course, merger to be the best then so

such

much the better. But I would not tie the premature

State Board’s hands consti- with.a ruling predicated meager

tutional on a rec-

ord. government thing there is no such as a you help group, you

free lunch: when one And, invariably group.

almost hurt another

frequently group you hurt are not and, therefore,

court must be defended judges. people defending need who ed notes inquiry by §§ letter Petitioners’ counsel’s 701 to 797b tion Act of U.S.C.