October 11, 2013

Mr. Manuel P. Arvon, II
Superintendent
Berkeley County Schools
401 S. Queen Street
Martinsburg, WV 25401-3233

Superintendent Arvon:
I am in receipt of your request for a superintendent interpretation dated October 8, 2013, wherein you ask the following: ". . . whether the Executive Director of the Secondary Schools Activities Commission has the authority to overrule a county school superintendent's interpretation of the county board of education's Promotion and Retention Policy, where the county board of education has determined that the policy and the superintendent's interpretation thereof are reasonable."

W. Va. Code 18-3-6 gives the State Superintendent of Schools the authority to give his interpretation of the meaning of any part of the school law or of the rules of the state Board of Education. Interpretations of the State Superintendent carry the weight of law until and unless the interpretation is overruled or rejected by a court of law.

In issuing this opinion, I cannot ignore the context in which your request is made and have found it necessary to consider other facts not raised in your request including Berkeley County's promotion and retention policy and the particulars of how and when Berkley County Schools implemented the policy as it relates to this incident at hand. In looking at each of these additional items, it remains clear that Berkeley County's decision to enroll the student in question into the ninth grade upon his return to the county was within the parameters of the Berkley County Policy and well within your authority as county superintendent. Berkeley County Policy IHE states:

"Promotion and retention at the middle school level will be determined by a committee of faculty members from that individual school." It goes on to say that "A student will be considered for retention if he/she fails two or more of the above subject areas."

Nothing in the Berkeley County policy limits a student's retention for academic reasons solely to his or her receipt of failing grades. Rather, a committee will review each student's unique circumstances and will determine whether, based on all available evidence, not just failing grades, whether the student should be promoted or retained. As written, the policy in no way restricts retention or promotion determinations to a narrow definition that is solely dependent on the receipt of failing grades.

The Berkeley County student whose eligibility is in question attended eighth grade in Berkeley County schools. The next year, the student was enrolled at a private school located outside of West Virginia. The private school assessed the student's academic progress and determined that the student needed to remain in the eighth grade for an additional year. After attending private school for one year, the student was reenrolled at Hedgesville High School. Upon his reenrollment, the Berkeley County administration reviewed the student's transcript of academic progress from the private school and from his prior attendance in Berkeley County, agreed that the actions of the private school were appropriate and consistent with their own policies, and enrolled the student in the ninth grade. In doing so, Berkley County administered and interpreted its promotion and retention policy in a fair and reasonable manner with the best interest of the student in mind.

In considering this request for an interpretation, I have reviewed West Virginia Board of Education Policy 2510, Assuring Quality of Education: Regulations for Education Programs (W. Va. 126CSR42) which states, in section 7.3:

"The county board of education shall ensure that each school has established and is implementing . . . [a] policy for grading that is consistent with Policy 2515 and that addresses, at least, the issues of retention, promotion and the replacement of a grade if a course is retaken . . ."

It is readily apparent to me that the authority to determine and to implement retention and promotion lies solely within the authority granted to local superintendents and local boards.

The Secondary School Activities Commission's (SSAC) rule regarding eligibility and academic failures is found at section 5.3.a. in their rule titled Athletics, Provisions Regarding Eligibility (W. Va. 127CSR2). It states:

"A student held back one year in the sixth, seventh or eighth grade without failing shall lose the fourth year of eligibility after entering the ninth grade."

In construing West Virginia Board of Education Policy 2510 and the SSAC policy together, it is important to note that the West Virginia Board of Education, pursuant to W. Va. Code 18-2-25, must review and approve all SSAC rules prior to their implementation. Thus, it is reasonable to conclude that the West Virginia Board of Education would not promulgate or approve rules with inconsistent provisions. It is also important to note that the SSAC is charged by the West Virginia Board of Education to promulgate its rules in a consistent and equal manner and to promote the general welfare of all students who participate in SSAC extracurricular activities. The West Virginia Board of Education has delegated authority to the SSAC to issue rulings in matters of eligibility and has an expectation that those rulings be made in an equal and consistent manner.

I believe that when looking at both sections of policy together, the logical conclusion to the question you pose is that the SSAC does not have the authority to overrule a county school superintendent's interpretation of his or her county's Promotion and Retention Policy. West Virginia Board of Education Policy 2510 clearly contemplates that county boards of education will develop policies to govern when a student can be academically promoted or retained. Nothing in the SSAC policy language indicates that it has the authority to determine when a failure has occurred, nor does it contain a definition of the phrase "without failing." A student could fail a grade and be held back for various reasons which include but are not limited to his or her earning of grades that are below an acceptable level as defined by the county, his or her inability to achieve other benchmarks of academic progress as determined by the county, his or her reasonable retention by another school or school district prior to transferring to the current district, or his or her failure to earn the credits necessary to be promoted to an advanced grade.

Whatever the reason for a failure, it is the county board of education that has the authority to define what constitutes a failure and the county superintendent (or designated staff) who has the authority to apply the county board's policy to individual students and make a final determination regarding the failure. The foremost reason that West Virginia Board of Education Policy 2510 charges local boards with the responsibility for determining retention and promotion is that academic decisions regarding students are best left to local administrative and instructional staffs who have personal and detailed knowledge about a student's abilities and limitations. Making promotion and retention determinations at the local level is in the best interest of students.

Unless my interpretation, above, is accepted by the SSAC, a person could conclude that the West Virginia Board of Education policy and the SSAC policy are inherently in opposition to one another. The West Virginia Board of Education policy is intended to provide for fairness for each individual student as it relates to promotion and retention decisions in consideration of their academic progress or non-progress; and, the SSAC policy appears to be intended to protect the general welfare of all students equally at the time that eligibility for participation is determined without consideration of what is fair and in the best interest of each individual student. If the expectations of two different entities governing student participation at the county level or at the state level are not reconciled as I have suggested herein, they will continue to unfairly penalize an expanding group of student athletes: those who choose to take steps to improve their academic standing and are subsequently forced to forfeit their privilege to participate as a student athlete for the full duration of their high school career.

In my mind's eye and from the view from my position as State Superintendent, it appears that there is something unfair and unequal to students if the two policies at issue are not interpreted as I have indicated. When one also considers the stance the West Virginia Board of Education has taken as it relates to Senate Bill 359 (2013) to focus on improving student achievement across the state, an alternate interpretation of the policies will run counter to the philosophy of the Legislature and State Board. If students, parents, schools, or school systems take steps to improve academic performance by means of retention of a student; and, if the student does his or her part to maintain eligibility through the SSAC requirements of age, attendance, participation, residency, and scholarship; and in doing so then subsequently forfeits the privilege of participation in activities as an individual for the full span of a school year, how can we expect students, parents, schools and school systems to want to fully embrace the West Virginia

School Board's vision for taking reasoned steps to improve academic performance? It is my hope that all parties take this dynamic into consideration as they move to the final resolution of this matter.

Respectfully,

James B. Phares, Ed.D.
West Virginia State Superintendent of Schools

JBP/hhd