A majority of justices from the Supreme Court of Appeals of West Virginia have reversed a state circuit court, finding that prohibiting the entry of home-schooled students into interscholastic activities does not violate equal protection under art. III, § 10 of the West Virginia Constitution.
In addition, the justices found that the school board named as a defendant in the case has the necessary authority to make such decisions and that there was nothing that the West Virginia Secondary Schools Activities Commission did, which “violate(d) its constitutional or statutory authority in promulgating the legislative rule found at W. Va. C.S.R. § 127-2-3.1.” The rule “requires that, to be eligible for participation in interscholastic athletics, a student must be enrolled full-time in a school participating in the WVSSAC.”
The impetus for the case was the desire of Daniel and Christy Jones of Marion County, West Virginia to have their son, Aaron, participate on the Mannington Middle School wrestling team. The Joneses investigated the possibility of Aaron joining the Mannington Middle School wrestling team and were advised that they needed approval from WVSSAC.
The commission denied the request, citing the aforementioned rule. The Joneses sued on December 12, 2002, naming the West Virginia State Board of Education, State Superintendent David Stewart, the Marion County Board of Education, Marion County Superintendent Thomas Long, and WVSSAC as defendants. The plaintiffs sought, inter alia, declaratory, equitable and injunctive relief. On September 23, 2003, the circuit court entered a final order for the Joneses, holding that:
“1) the defendants have breached their statutory duty under West Virginia Code section 18-8-1(c)(3) by failing to make an available educational resource available to Aaron, 2) the defendants have violated Aaron’s right to equal protection, as guaranteed by Article III, section 10 of the West Virginia Constitution, because the blanket prohibition on home schooled students participating in interscholastic athletics fails the applicable rational basis test, and 3) the defendants have breached the duty to promulgate reasonable rules and regulations by implementing a total ban rather than crafting fair rules tailored to any legitimate concerns that may flow from allowing home schooled students, who are otherwise qualified, to participate on sports teams fielded by the public school they would be attending if they were not home schooled.”
In addition, the circuit court granted a writ of prohibition against school officials to “prevent them from exceeding their statutory and constitutional authority by excluding otherwise qualified home schooled students from participating on sports teams fielded by public schools.”
The circuit court issued a writ of mandamus:
“a. to compel the defendants to comply with their statutory duty to afford the plaintiffs access to available educational resources, which includes participation in interscholastic athletics;
“b. to compel the defendants to afford the plaintiffs and their son the right to equal protection, as guaranteed by the West Virginia Constitution, which means that the defendants shall not give effect to the enrollment rule that excludes home schooled students from interscholastic athletics;
“c. to compel the defendants to comply with their statutory duty to promulgate reasonable rules, which shall not include an enrollment rule that results in the blanket prohibition against home schooled students participating in interscholastic athletics; and d. to compel the defendants to allow the plaintiffs’ son, Aaron, to try out for and, if successful, to compete on any sports team that is being fielded by the public school Aaron would otherwise attend were he not being home schooled.”
The defendants appealed, arguing that the circuit court erred in concluding: (1) that the school officials had breached a statutory duty by failing to make interscholastic athletics available to home-schooled children; (2) that the legislative rule prohibiting home-schooled children from participating in interscholastic athletics violates equal protection; and (3) that the school officials breached their duty to make reasonable rules and regulations with respect to the participation of home-schooled children in interscholastic athletics.
Addressing the statutory duty issue first, the high found that the circuit court misconstrued West Virginia Code section 18-8-1(c)(3), which provides resources “as may assist the person or persons providing home instruction.”
“Clearly, this statute pertains to providing educational resources to the person or persons providing instruction, who, in this case, was Mrs. Jones,” wrote the justices. “Because the statute does not address providing resources, such as interscholastic sports, to a home-schooled student, we are not at liberty to judicially add such a provision.”
Turning to the question of equal protection argument, the court gave special credence to Janasiewicz v. Board of Educ. of Kanawha County, 171 W. Va. 423, 426, 299 S.E.2d 34, 37-38. In that case, chose not to allow parochial school students to use the bus at public expense.
“As with the parochial students in Janasiewicz, the parents of home-schooled children have voluntarily chosen not to participate in the free public school system in order to educate their children at home,” the court in the instant case wrote. “In making this choice, these parents have also chosen to forego the privileges incidental to a public education, one of which is the opportunity to qualify for participation in interscholastic athletics.
“Moreover, the school officials have asserted numerous grounds supporting a rational basis for excluding home-schooled children from participation in interscholastic athletics. Two of these grounds we find particularly persuasive: (1) promoting academics over athletics, and (2) protecting the economic interests of the county school systems.
“With respect to promoting academics over athletics, the school officials note that the WVSSAC has, in keeping with the policies and rules of the West Virginia Board of Education, imposed grade requirements which must be met for a student to participate in interscholastic sports.
“Children who are home schooled … are graded differently from those in the public school system.
“Furthermore, the different grading standards and methods used for home-schooled children would significantly impede the school official’s ability to maintain the academic standards that have been established for participation in interscholastic athletics. For example, the school officials point out that allowing home-schooled children to participate in interscholastic athletics would create a risk of mischief on the part of some parents of athletically skilled, yet academically struggling, children. Specifically, a parent could withdraw an academically struggling child from the public school system in order to maintain his or her athletic-eligibility, thereby thwarting the efforts of the public school system to promote academics over athletics.”
Addressing the second point, the court noted that “home-schooled children do not contribute to the average daily attendance or enrollment numbers of the public schools, thus no funds are expended to the county boards in consideration of those children. To then require counties to spend these limited funds to support the athletic participation of home-schooled students would create a financial burden.”
Finally, the high court noted that “the Legislature may delegate to an administrative agency the power to make rules and regulations to implement the statute under which the agency functions,” which is exactly what took place in its ruling with the Jones’ son. Jones et al. v. West Virginia State Board Of Education et al.; S.Ct.App.W.Va.; No. 31785, No. 31786; 7/6/05
Attorneys of Record: (for defendants) Darrell V. McGraw, Jr., Attorney General, Barbara H. Allen, Managing Deputy Attorney General of Charleston, West Virginia, and Stephen R. Brooks of Flaherty, Sensabaugh & Bonasso in Morgantown, West Virginia, and William R. Wooton of Beckley, West Virginia. (for plaintiffs) Randall A. Minor, West Virginia University College of Law of Morgantown, West Virginia.