Supreme Court hears appeal in Nicholas County school consolidation case

By Kyla Asbury | Oct 3, 2017

CHARLESTON – The West Virginia Supreme Court of Appeals heard arguments on the appeal of the case involving a request to consolidate schools in Nicholas County.

The Kanawha Circuit Court previously granted the request for injunctive relief by the Nicholas County Board of Education concluding that the West Virginia Board of Education did not have the authority to disapprove of the school consolidation plan under the procedure as presented.

In September, the state board issued conditional approval of the consolidation.

The state board’s conditional approval will be withdrawn if the Supreme Court grants the state board’s request of stay of Bloom’s order for the board to given conditional approval or post a $130 million bond.

In August, Kanawha Circuit Judge Louis “Duke” Bloom reversed the state school board’s denial of the consolidation plan. 

Kelli Talbott, a senior deputy state attorney general, argued for the West Virginia Board of Education during the Oct. 3 hearing. Ken Webb of Bowles Rice argued for the county board. The state Supreme Court chamber was packed with concerned residents.

“The issue in this case is the state board of education’s authority over school closure and consolidation matters that arise from county boards of education,” Talbott said. “The state board of education has more than a ministerial role in these matters. Yet, that is what the circuit court said in this matter: that they had a ministerial role and that as long as the county met the procedural components of state board policy statute, that the state board had no choice but to approve the plan.”

Talbott said the state board is seeking reversal of the circuit court’s error because they believe it defies the precedent that state Supreme Court handed down in a Kanawha County Board of Education case issued in 1990.

The state board gave detailed reasons for the disapproval, which it was required to do, Talbott said.

“The reasons were not arbitrary or capricious,” Talbott said. “They were education policy reasons that went to the heart of the issues in this case: whether or not the students affected by these closures and consolidations would be receiving a thorough and efficient education under the Constitution.”

Talbott said the state court judge second guessed the state board of education and affectively substituted his judgment for the state board of education.

“There is nothing in the policy or West Virginia code that compels the state board to approve a plan just because it meets the minimum procedural requirements,” Talbott said.

Talbott said the state board has a role to play, as it was put in place for checks and balances for students’ rights to be enforced.

Webb said what the state court did was proper.

“We prepared and provided the information to the state board,” Webb said. “We did everything required.”

Webb said all you can measure against is the policy and, by the policy, the consolidation plan should have been approved.

“If the state board things something is important, it can change the policy” Webb said. 

Talbott said the state board exercises its broad authority.

“The state board is not just limited to what the Legislature gives it,” she said. “This is not just a check the box exercise.”

The consolidation plan was to consolidate Nicholas County High School, Richwood High School, Richwood Middle School and Summersville Middle School.

The Nicholas County Board of Education plans on using FEMA recovery money from last year’s flood, which damaged the schools, to build a new, consolidated campus for the four schools, as well as the county’s vocational education center.

Bloom ordered the state board to either give conditional approval to the Nicholas County Board of Education’s school consolidation plan or for it to post a bond in the amount of $130 million to cover federal funds on the line with FEMA last week.

In the previous ruling, Bloom ruled that the state board erred in rejecting the county’s consolidation plan.

W.Va. Supreme Court of Appeals case number: 17-0767

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