CHARLESTON, W.Va. — In a courtroom packed with orange-clad supporters from the community of Richwood, state Supreme Court justices heard arguments over what authority governs consolidation decisions.
Strictly speaking, the court’s decision will affect whether Nicholas County goes ahead with its decision to combine five schools at one campus in the Summersville area — or if the state Board of Education’s decision to block that plan will stand.
But justices also are considering broader issues such as the oversight role of the state board versus the local decision-making responsibility of county boards, and how each is weighed under the state Constitution.
Lawyers for both the state school board and the county school board addressed justices over about half an hour today, discussing sources of authority ranging from the Constitution to prior Supreme Court decisions to Policy 6204, which is the state board’s guidelines for overseeing county-level consolidation decisions.
The most active on the High Court in asking questions were Justice Margaret Workman and Chief Justice Allen Loughry, with Justice Menis Ketchum now and then raising an issue. Justices Robin Davis and Beth Walker mostly listened.
Deputy Attorney General Kelli Talbott argued on behalf of the state board that its members had detailed their reasons for rejecting the Nicholas County consolidation plan and that those reasons were not “arbitrary and capricious” — the reason the state board’s decision was overturned in circuit court.
“The circuit court effectively substituted its judgment for that of the state board of education,” Talbott told the justices.
Talbott said some aspects of the consolidation case — such as the catastrophic flooding that kicked off the situation and the availability of Federal Emergency Management Agency funding — were factors outside the board’s Policy 6024, creating the need for the board to have flexibility with its judgment.
Late in the hearing, Justice Workman asked if the state board shouldn’t provide clearer guidelines for counties to follow.
“If the state board is going to make these decisions on other criteria, shouldn’t they be amending their rules?” Workman asked.
Talbott responded, “This is not just a check-the-box exercise.”
She continued, “You can’t necessarily have a policy that dictates every single thing that might arise. For example, here this was an unprecedented circumstance where there was flooding and there were FEMA funds available.”
Workman also wanted to know about the repercussions of a deadline — already extended — to use an alternate form of FEMA funding that pools the money to rebuild individual schools for one project.
“What’s the practical effect of this flood money available from the federal government?” Workman asked.
“There are multiple options with the federal flood money,” Talbott responded. “There are options where the county board could indeed replace the existing schools. They could get replacement money.”
“What about the money that does have a deadline?” Workman asked.
Talbott responded that the deadline is at the end of this year.
Workman said, “I was asking what would happen if your side prevails.”
“They would have to come up with another plan,” Talbott said. “An extension of that deadline has been requested by the state.”
Kenneth Webb, the lawyer for Nicholas County, argued that the state’s rejection of the consolidation plan resulted from factors not laid out in advance. He said the state board has the authority to change its guidelines but said it shouldn’t do on the fly.
“They have the ability to change their policy,” Webb said. “So let’s say state board of education favors community schools, they can put that out for public comment.”
Justice Loughry asked questions aimed at probing whether the state board’s current procedures already allow its discretion.
“Why would 6204 require submission of supporting documentation if the board wasn’t supposed to review it and evaluate it?” he asked.
Workman followed up: “The real issue is, can the state school board go above and beyond that?
Webb phrased the question like this: “How do we measure arbitrariness? You’re considering things not in your policy.”
Loughry asked, “What if a county board provides a plan that checks all boxes but it made no financial sense whatsoever, no educational sense, but they followed the policy 6204 — would you say the state board had no authority in those circumstances?”
Webb responded that criteria like those are already present in the policy.
“You can because it doesn’t make sense financially. If you can find one of those 6204 reasons why it isn’t warranted or justified, absolutely you can rejected it,” he said.
Loughry later commented that Webb’s argument seemed to lay out a situation where the state board can only exercise its authority to approve a plan based on broad criteria being met — without being able to exercise its own judgment.
“Why wouldn’t you submit the plan to the local humane society if nothing can be changed?” he asked.
Loughry also wondered about the specifics within the categories to be considered.
“When you look at the categories, aren’t they just categories of information? I don’t see anything with specific benchmarks or criteria. Isn’t it just information?” the justice asked.
Many of those who attended the hearing were Richwood community members, wearing orange to show support for the high school.
Steve Deitz, a world geography teacher at Richwood Middle, said he attended because he doesn’t believe consolidation would be good for students.
“I’m here because I do not want to see consolidation because I think smaller’s better,” Deitz said after the hearing. “I think we’ll see that the Supreme Court will side with us because I think our argument was much better.”
Another community member in attendance, Tiffany Russell, also thought the final decision could go Richwood’s way.
“I’m hoping it’s in our favor,” Russell said. “I felt they had a good argument and that all of them (the justices) kept asking and reiterating ‘Is this all that you have?’ for the county board — and that they really didn’t have any more evidence than what they were bringing. So it kind of felt good.”