October 23, 2009

Dennis Albright, Superintendent
Braxton County Schools
411 North Hill Road
Sutton, WV 26601

Superintendent Albright:

You have asked for an interpretation of school law relating to the application of school closing and consolidation procedures to a proposed grade level reconfiguration procedure. Your have related the following description:

1. The district's only middle school, Braxton County Middle, is currently configured as a 5-8 school. Following reconfiguration it will become a 7-8 school.

2. All elementary feeder schools (currently PK-4), including Flatwoods Elementary, Sutton Elementary, Davis Elementary, Frametown Elementary, Little Birch Elementary and Burnsville Elementary, will be reconfigured to add the 5th and 6th grades for students residing within their respective attendance areas.

3. The movement of grade levels would be staged. The 5th grade would be returned to the respective elementary schools commencing with the 2011-2012 school year and the 6th grade would be returned to the respective elementary schools commencing with the 2012-2013 school year.

This office has consistently cited with approval an opinion of the WV Attorney General dated February 24, 1986, which states:

In determining whether a grade reconfiguration comes within the meaning of closing or consolidating a school, as set forth in Code 18-5-13a, we must consider the purpose of the enactment. This code provision was passed last year against the backdrop of consolidations and closures, e.g. Northfork High School, Pennsboro High School and Washington Junior High School. In those instances one segment of a county was being adversely affected by board action, and a specific school was to be closed. The procedures of Code 18-5-13a gives a voice to the impacted minority of that community to express their concerns about the proposed school closure to the educational leaders. The backdrop of the passage, and what we believe to be the purpose, relates to when a school's mission is terminated. Grade reconfiguration generally does not terminate the mission of a school, but merely alters the mission slightly.

Dennis Albright
October 23, 2009
Page 2

For the purpose of determining the applicability of Code 18-5-13a to reconfiguration, our conclusion is that vertical changes of school structure require no hearings, but horizontal changes require the procedures mandated by the law. To explain vertical changes, let us express a hypothetical. Chamberlain Elementary and Kanawha City Elementary feed into Horace Mann Junior High, which, along with Roosevelt Junior High, feeds into Charleston High School. As long as the reconfiguration only involves moving grades 5 and 6 from Chamberlain Elementary and Kanawha City Elementary to Horace Mann Junior High and grades 9 from Horace Mann Junior High and Roosevelt Junior High to Charleston High School, Code 18-5-13a would be inapplicable. Students at Chamberlain Elementary and their families have always contemplated that they would leave the school and progress upward to Horace Mann Junior High. We perceive this to be a vertical change only, and not within the meaning of closing or consolidation as they are meant by Code 18-5-13a. If, on the other hand, one were to also transfer grades K-4 from Chamberlain Elementary to Kanawha City Elementary, then that would be a horizontal change requiring that the mandates of Code 18-5-13a be followed. In that instance the mission of Chamberlain Elementary would not be changed, but terminated, thus, the applicability of the Code Section. Grade reconfiguration does not trigger the procedures of Code 18-5-13a, as long as the changes are vertical and the mission assignments of the affected school are altered rather than terminated." (emphasis added).

Based upon the reconfiguration as described, it appears that the proposal falls squarely within the "vertical" movement reconfiguration considered by the Attorney General's opinion and the character and missions of the affected schools will not change. It is, therefore, my opinion that the school closing/consolidation procedures contained in West Virginia Code 18-5-13a and West Virginia Board of Education Policy 6204 would not be triggered by the reconfiguration of grade levels that you have described.

Hoping that I have been of service, I am,

Sincerely,

/s/

Steven L. Paine
State Superintendent of Schools