Interpretation's Date: December 21, 1995
by superintendent Henry Marockie
Section: III. County Educational Administration
SubSection: B. County Superintendents



- M E M O R A N D U M -

TO: County Superintendents

FROM: Henry Marockie
State Superintendent of Schools

RE: Randolph County Textbook Case; Mercer County Excess Levy Case

DATE: December 21, 1995

The State Supreme Court issued two important school law decisions during the week of December 11, one involving Randolph County's textbook user fee, the other involving the validity of Mercer County's excess levy. Prior to the appeals of these cases, the Circuit Court of Randolph County had declared the book user fee unconstitutional, and the Circuit Court of Mercer County had invalidated Mercer County's excess levy. We understand that copies of both Supreme Court opinions are being sent to you by the WVASA and perhaps others.

The Supreme Court has unanimously agreed with the Circuit Court of Randolph County in holding the book user fee unconstitutional. The Supreme Court's opinion is 34 pages long; however, the essential points appear to be stated in Syllabus Points 3 and 7, which are quoted, respectively, as follows:

"3. Section 1 of Article XII of the West Virginia Constitution creates a strong presumption in favor of making everything that is deemed a necessary component to public education cost-free. When a board of education seeks to charge parents for their children's participation in public education, the board bears a heavy burden in rebutting this constitutionally based presumption.
* * *
"7. Whatever items are deemed necessary to accomplish the goals of a school system and are in fact an integral fundamental part of the elementary and secondary education must be provided free of charge to all students in order to comply with the constitutional mandate of a free school system pursuant to Section 1 of Article XII of the West Virginia Constitution."
In reciting the facts, the Court noted that prior to instituting the book user fee, the Randolph County board had lost a levy in 1993. The Board then incurred large deficits in 1993-94 and 1994-95. The Supreme Court said that it understood and sympathized with the county board concerning its "dire financial straits"; but that, "extreme need is still no justification for a violation of rights of constitutional magnitude" (page 28 of the opinion). The Court then offered the following suggestions (page 29):

"If serious financial problems are threatening the Board's ability to provide a quality education for all its students, then the Board may need to explore other alternatives for raising the needed revenue. Such possibilities might include raising public awareness and appealing again to the community for the passage of another excess levy or going to the Legislature and lobbying more effectively for necessary financial assistance. Another possible method may even be to undertake the arduous task of prioritizing and eliminating course offerings. These and like efforts are within the fair ambit of the Court's practical conception of what is within the Board's authority and are not called into question by our decision today. We, however, do not attempt to suggest what would be the best method considering our only task in this case is to determine the constitutionality of the book user fee."

In the Mercer County case, the Supreme Court has reversed the lower court's decision and is allowing Mercer County's excess levy to go into effect in its entirety. However, it is important to note that the Court expressly disapproved of a portion of the levy, holding that it did not comply with the statutory requirements. The Court allowed the entire levy to stand by declaring that its ruling would have "prospective application" only. Therefore, all excess levies proposed from now on must pay heed to this opinion, particularly the discussion at pages 14-16. In summary, the Court said that a general statement of purpose will comply with the statutory requirements and that the three personnel items in the levy order sufficed as one general purpose, even though specific amounts were not broken out for each of the three component items. The Court then said, however, that "once specific purposes are enunciated, corresponding amounts for each purpose must be stated". On this point, the Court said that the eight non-personnel items that were encompassed in one lump sum amount could not be categorized as one general purpose; therefore, a separate amount for each of these eight items should have been stated in the levy language. The Court recommends that "the better practice for a school board would be to offer its taxpayers a delineation of purposes . . . specific enough to provide the taxpayers with notice of what they are being asked to approve along with accompanying specific amounts for each purpose". Note also that the Court urges the Legislature to examine this issue for the purpose of making the statute more specific.


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