September 26, 2007

Frank Devono, Superintendent
Monongalia County Schools
13 South High Street
Morgantown, WV 26501

Dear Superintendent Devono:

I am in receipt of your request for an interpretation regarding West Virginia Code 18-5-13a relating to its applicability to a change in grade configuration in Monongalia County. You set for the following scenario:

In the fall of 2008, a new University High School will open for faculty and students. Once the move to the new school has been completed, renovations will begin on the old University High School facility. It is the intent of the Board of Education to modify that structure to accommodate students from Cheat Lake Middle School. Cheat Lake Middle School, which is adjacent to Cheat Lake Elementary School, currently houses students in grades five through eight. It is the intent of the Board of Education to move students in grades six through eight to the newly renovated facility and allow the fifth grade students to remain at Cheat Lake Elementary School. This reconfiguration is in accord with Policy 2510's recommendation for elementary and middle schools.

The Attorney General of West Virginia, in an opinion dated February 24, 1986, came to the following conclusions regarding grade reconfigurations:

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.

Regarding the building of a new high school and the relocation of the middle school to the former high school building, I believe it is clear that no closure hearings are required pursuant to West Virginia Code 18-5-13a.

The scenario you describe regarding the location of the fifth grade is not exactly the same as that described by the Attorney General. In his example, closure hearings were not triggered because students in the reconfigured schools progressed upward and into schools they and their families always contemplated they would attend. In your example, fifth grade students from the current Cheat Lake Middle School will be required to move down the vertical chain to become part of a school entity which they previously attended (i.e., Cheat Lake Elementary School). However, it is my determination that the same reasoning should apply to the move you propose. The students in question do not make a horizontal change. Rather, they simply move down a step on the same vertical chain and will only have to wait a year until they move to the Middle School as sixth graders. The missions of Cheat Lake Middle School and Cheat Lake Elementary School are not terminated, each school continues to serve students from the same geographic area, and the grade reconfiguration is occurring in a vertical line. Thus, it is my opinion that a closure hearing is not necessary in order to move the fifth grade from Cheat Lake Middle School to Cheat Lake Elementary School.

Hoping that I have been of service, I am

Sincerely,

/s/

Steven L. Paine
State Superintendent of Schools