by Ron Gregory
CHARLESTON – Although supreme court justices often ask many questions with answers that do not appear to alter their ultimate decision, West Virginia’s supreme court seemed uniquely inquisitive Tuesday in a Nicholas County schools case.
In fact, Chief Justice Allen Loughry and Justice Margaret Workman peppered attorneys for the two sides with questions and comments during oral arguments. At stake is a Kanawha County circuit court ruling that paved the way for school consolidation in Nicholas.
The backdrop of a horrific flood last year that virtually destroyed two schools in Richwood and one in Summersville served as what many consider a point of no return for the Nicholas board of education.
Initially, Richwood officials such as Mayor Bob Henry Baber say the local board teamed with the Federal Emergency Management Agency on a plan to build replacements for Richwood High School and Middle School within the Richwood school districts. But, Baber says, those plans changed at some point. He alleges various non-public meetings were held with the county superintendent and FEMA conspiring to “steal” the Richwood schools.
Ultimately, the decision was made to locate a consolidated Richwood and Nicholas County High School within easy distance of the county seat of Summersville. The middle schools would be located in that same area, the county board determined.
Baber and others have cried foul since plans for consolidated schools became public. For his part, the mayor insists FEMA is a federal agency charged with “restoring not destroying towns and communities.”
Consolidation has long been a West Virginia issue with new Governor Jim Justice replacing several state board of education members with those who have publicly opposed consolidation. Justice, a Republican, has consistently said he is against school consolidation.
The current matter came before the court after Kanawha Circuit Judge Duke Bloom ruled that the state board had overstepped its bounds in refusing to approve the consolidation plan submitted by Nicholas County that would merge the five existing schools into a new high school, vocational school and middle school.
Several Richwood supporters in the packed courtroom sported orange-colored attire in tribute to the high school’s colors.
Attorneys for both the state and local boards addressed the justices. Deputy Attorney General Kelli Talbott, representing the state board, argued that the state BOE has wide discretion in approving consolidation plans. Kenneth Webb, the lawyer appearing on behalf of the Nicholas board, cited State Board Policy 6204 as requiring only six criteria for consolidation. It was Webb’s consistent position that, when the Nicholas board met those requirements, approval of the consolidation plan was merely ministerial for the state.
All five justices – Loughry, Workman, Menis Ketchum, Robin Davis and Beth Walker – appeared to intently listen to the arguments. Ketchum sprinkled in a few questions and included some previous court decisions in similar matters. Walker and Davis largely listened and jotted notes while Workman and Loughry often interrupted the attorneys with questions.
Talbott insisted that no state law compels the state to approve county consolidation plans. She said the state board looked at Nicholas County’s proposal, deliberated and came to a “decision that was not arbitrary and capricious.”
The state lawyer said the motion made to deny the plan “fully articulated the reasons for rejecting it.”
More than once, Talbott commented that Bloom “substituted his judgment for that of the state board of education.
Workman asked Talbott if the state board could provide updated guidelines for consolidation.
The assistant attorney general argued that the items listed in Policy 6024 are “not the only factors to be considered and not all-encompassing. No two consolidations are alike. Take this one, you seldom have FEMA and a catastrophic flood involved in a school consolidation.”
In answer to a question about whether delay in the consolidation approval could jeopardize FEMA funding, Talbott said one portion of the funds could not be effected. With respect to the other, she said the state and local boards have “several options” that can be explored before a December deadline.
Talbott mentioned that obtaining “highly-qualified teachers” was one of the consolidation goals cited by the county board. But, she said, Richwood high and middle schools already have teachers “who are ranked highly-qualified, 90 and 100 percent.”
In addition, the assistant AG listed numerous legal requirements she said had not been followed in the Kanawha County case. When Loughry asked Talbott if she was, then, asking for the case to be remanded “on procedural grounds,” she appeared to hesitate. “We think the board has the authority to reject this plan,” she said.
Webb argued that the state board actually has little legal authority over the local board. At one point, his position became so persistent that there was really no reason for the county to have to submit its plan to the state for approval, that Loughry said, “Under your understanding, then, they might as well submit it to the humane society.” There were muffled chuckles in the courtroom.
Talbott strongly disagreed with a Webb assertion that the state board had now changed its overall opinion from being “pro” to “anti” consolidation. Again, she argued that each consolidation is unique and did not agree that the board should let the public know it is against consolidations.
The chief justice asked Webb. “why would 6204 require submission of supporting documents if the board wasn’t supposed to review it and evaluate it?” The attorney said, again, that the state board exceeded its authority by considering facts not contained in 6204.
Baber stood inside the courtroom door after the hearing concluded, shaking hands with several of those who passed by. He later said he felt good about the arguments. “I think it went really well for Richwood,” he said.
The justices will issue a decision in the case, although no timeframe has been established.