WEST VIRGINIA RECORD

CHARLESTON - The Kanawha County Board of Education has filed a suit against its state superior, claiming the county is being discriminated against because it is required to give a portion of its proceeds from tax levy receipts to the county's public library, while 46 other counties are not required to do so.

Jackson Kelly attorney Jonathan L. Anderson filed the suit Oct. 14 in Kanawha Circuit Court against the West Virginia Board of Education.

According to the suit, in a special act passed by the Legislature in 1957, the Kanawha County BOE was mandated to distribute a substantial portion of the proceeds of its annual regular tax levy receipts for the support of the public library.

Forty-six other county school boards were not subject to the mandate, the suit says.

In 2003, the county board filed a suit against the state board, claiming Kanawha County was a victim of discriminatory classification, in the amount of financial support available for the education of Kanawha County students.

According to the suit, in 2003, the Kanawha board sought a declaration that the mandate denied the Kanawha board the equal protection of the laws guaranteed to it and the Kanawha County public school students, by Article III of the West Virginia Constitution.

In the 2003 case, the court, using a "rational basis," held that the discriminatory treatment did not present an enforceable denial of equal protection by the Kanawha Board, the suit says.

The civil case was appealed and the Supreme Court of Appeals reversed the decision, saying, "... because education is a fundamental, constitutional right under the West Virginia Constitution, a 'strict scrutiny,' as opposed to a 'rational basis,' level of review applied," the suit says.

The Supreme Court held that the mandate requiring the Kanawha County BOE distribute a portion of its regular tax levy receipts for the support of the Kanawha Library was an unconstitutional violation of equal protection.

The high court said, "A statute that creates a lack of uniformity in the State's educational financing system is subject to strict scrutiny, and this discrimination will be upheld only if necessary to further a compelling state interest."

In the 2008 Legislative session, an amendment was created stating, "the library funding obligation on the regular school board levies which is created by a special act and is due and payable from the levy revenues to a library shall be paid from the county school board's discretionary retainage," the suit says.

The Legislature defined "discretionary retainage" as the amount by which the regular school board levies exceeds the local share.

However, the Kanawha board claims that if it excluded the discretionary retainage -- the required payment to the library -- the state board would disapprove the budget of the Kanawha board and the budgeted amounts could not be lawfully expended by the Kanawha Board for the education of Kanawha County public school students, the suit says.

Also, the Legislature provided an option to the board where the board could transfer its funding obligation from its regular school levy revenues to its excess levy revenues.

According to the suit, the Kanawha board believes that if the excess levy fails to pass, the board must include the funding obligation to the Kanawha Library as a line item in any subsequent levies.

"Unlike the Kanawha Board, the 46 other county boards of education in West Virginia which are not required to expend any of their 'discretionary retainage' for the support of a public library are likewise not required to include expenditures for the support of a public library in their excess levies," the suit says.

In the two-count suit, the Kanawha Board of Education claims the Legislature has no authority to mandate what line items a local school district places in its excess levy and submits to the voters of Kanawha County.

The Board claims the Special Act is unconstitutional and seeks an injunction enjoining the defendants from requiring any part of the regular tax levy receipts be expended for the benefit of the library.

The case has been assigned to Judge Irene Berger.

Kanawha Circuit Court case number 08-C-2020