Filed: October 11, 1996
G. Nicholas Casey, Jr. Kathryn Reed Bayless
Shawn Anthony Taylor Bayless, McFadden & Cyrus
Lewis, Friedberg, Glasser, Casey _____________________________
& Rollins Attorney for Respondents
Charleston, West Virginia
Attorneys for Petitioner
The Opinion of the Court was delivered PER CURIAM.
1. "The function of a writ of mandamus is to enforce the performance of
official duties arising from the discharge of some public function, or imposed by statute."
Syl. Pt. 2, Hickman v. Epstein, 192 W. Va. 42, 450 S.E.2d 406 (1994).
2. "Mandamus will lie to control a board of education in the exercise of
its discretion upon a showing of caprice, passion, partiality, fraud, arbitrary conduct, some
ulterior motive, or misapprehension of the law." Syl. Pt. 4, Dillon v. Board of Educ. of
Wyoming County, 177 W. Va. 145, 351 S.E.2d 58 (1986).
3. "The Equal Protection Clause of the Fourteenth Amendment is not
violated by treating public and nonpublic school children differently in allocations of state
aid and educationally-related resources. We overrule Syllabus Point 2 of [Hughes]." Syl. Pt.
2, Janasiewicz v. Board of Education of Kanawha County, 171 W. Va. 423, 299 S.E.2d 34
4. "Mandamus does not lie to control a board of education in the exercise
of its discretion, in the absence of caprice, passion, partiality, fraud, arbitrary conduct, some
ulterior motive, or misapprehension of law upon the part of such board." Syl. Pt. 1, State ex
rel. Payne v. Board of Educ. of Jefferson County, 135 W. Va. 349, 63 S.E.2d 579 (1951).
5. "Arbitrary or capricious use of [discretionary authority] will not survive
judicial scrutiny." Syl. Pt. 2, Beverlin v. Board of Education of Lewis County, 158 W. Va.
1067, 216 S.E.2d 554 (1975).
The petitioner, Mike Cooper, as a citizen and taxpayer of Summers County and
as a parent of children of school age, suing in his own behalf and in behalf of all other
citizens of Summers County who are in like circumstances or similarly situated, has invoked
the original jurisdiction of this Court in seeking a writ of mandamus to compel the
respondents, the Board of Education of Summers County, a statutory corporation, and
Charles Rodes, Superintendent of Schools for Summers County, to provide school bus
transportation, or a stipend in lieu thereof, for his children to attend a private religious school
in nearby Monroe County. The petitioner contends the respondents have a duty to provide
this service and that failure therein constitutes a denial of equal protection and infringes upon
the right of religious freedom. For the reasons set forth herein, we deny the writ.
The relevant facts in this case are not disputed by the parties. Beginning in the
school year 1989-90, the respondents acted upon a request from parents of children in
Summers County to transport resident students to the Ballard Christian School in nearby
Monroe County. The respondents continued to carry out this transportation service for the
next six consecutive school years. The respondents, during this period, did not provide an
equivalent transportation service for Summers County students who may have desired to
attend a public school outside the county. The respondents did, however, provide
transportation services for Raleigh County resident students to attend public schools in Summers County.
As a result of operating with a significant long-term deficit, beginning in the
school year 1990-91 to the present,See footnote 1 the respondents determined during the 1995-96 school
year that they would have to make drastic cuts in the services they provided. This decision
was reached after the voters of Summers County refused to pass a special levy in January
1996. The respondents reacted to the deficit problem by taking the following measures,
which would take effect during the 1996-97 school year: (1) eliminate five teaching
positionsSee footnote 2; (2) reduce the length of employment terms for forty-five employeesSee footnote 3; (3)
terminate supplemental pay contracts for speech, band, and athletic programsSee footnote 4; and (4)
eliminate service personnel positions.See footnote 5 The elimination of service personnel positions
included the termination of two bus drivers and the transportation of Summers County
students to the Ballard Christian School.See footnote 6
The respondents assert that part of the pressure forcing them to make deficit
reduction cuts in services, stemmed from the prohibition in W. Va. Code, 11-8-26 (____),
which forbids "incur[ring] a casual deficit which exceeds [their] approved levy estimate by
more than three percent[.]"See footnote 7 The respondents have indicated they are "perilously close to the
casual deficit limit." The respondents also assert they have "not had a special levy in effect
since the 1981-82 school year."
Approximately thirty-two students living in Summers County are affected by
the decision to terminate transportation services to Ballard Christian School, beginning in the
school year 1996-97. The petitioner has two school-aged childrenSee footnote 8 who live with the
petitioner and his wife in Summers County. Both children attend Ballard Christian School.
The petitioner's children have been using transportation provided by the respondents to
attend school. When the petitioner learned of the planned discontinuance of the "Ballard
Christian run," he objected and requested the transportation continue or, alternatively, the
respondents provide him with a stipend for arranging transportation for his children to attend school in Monroe County. The respondents rejected both requests. The petitioner then filed
this original mandamus proceeding seeking to compel the respondents to either continue the
"Ballard Christian run" or provide him with a stipend for arranging to have his two children
transported to Ballard Christian School.
We begin our analysis by noting that in Syllabus Point 2 of Hickman v.
Epstein, 192 W. Va. 42, 450 S.E.2d 406 (1994), it was indicated:
"The function of a writ of mandamus is to enforce the performance of official duties arising from the discharge of some public function, or imposed by statute."
However, a writ of mandamus will not issue unless three elements coexist: (1) the existence
of a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on the
part of the respondent to do the thing which the petitioner seeks to compel; and (3) the
absence of another adequate remedy. Syl Pt. 1, State ex rel. Billings v. Point Pleasant, 194
W. Va. 301, 460 S.E.2d 436 (1995). See also Syl. Pt. 2, State ex rel. Kucera v. City of
Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969). It was observed in McComas v. Board
of Education of Fayette County, ___ W. VA.. ___, ___ S.E.2d ___, ___ (No. 23291
5/17/96), that "courts may not interfere with the decisions of a school board without strong
evidence justifying such interference. A school board's powers are not unlimited, however;
and a writ of mandamus is appropriate when a board oversteps, or fails to meet, its clear legal
duties." ___ W. Va. at ___, ___ S.E.2d at ___. (Slip op. At 5-6), citing Board of Educ. of Kanawha County v. West Va. Bd. of Educ., 184 W. Va. 1, 3, 399 S.E.2d 31, 33 (1990). This
Court stated succinctly in Syllabus Point 4 of Dillon v. Board of Education of Wyoming
County, 177 W. Va. 145, 351 S.E.2d 58 (1986):
"Mandamus will lie to control a board of education in the exercise of its discretion upon a showing of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of the law."
See Syl. Pt. 1, McComas, supra; Syl. Pt. 4, State ex rel. West Va. Bd. of Educ. v. Perry, 189
W. Va. 662, 434 S.E.2d 22 (1993); Syl. Pt. 1, Pell v. Board of Educ. of Monroe County, 188
W. Va. 718, 426 S.E.2d 510 (1992).
The petitioner concedes in his brief that the respondents have discretionary authority to provide bus transportation.See footnote 9 That is, providing school bus transportation is not a mandatory duty imposed upon the respondents by law.See footnote 10 The petitioner argues that because the respondents exercised discretion and undertook the task of transporting Summers County students to Ballard Christian School for six consecutive years, the respondents cannot stop providing this service or, if the service legally may be halted, the respondents are obligated to pay to him the cost for transporting his children to Ballard Christian School. The petitioner further alleges that failure to perform either alternative denies him equal protection and infringes upon his right to religious freedom. The respondents assert that terminating the Ballard Christian run and refusing to provide petitioner with a transportation stipend do not violate equal protection principles or the right of religious freedom.
Both of petitioner's constitutional claims are controlled by our decision in
Janasiewicz v. Board of Education of Kanawha County, 171 W. Va. 423, 299 S.E.2d 34
(1982).See footnote 11 In that case, parents of children attending parochial schools in Kanawha County
petitioned this Court for a writ of mandamus to compel the county school board to create bus
routes for their children or provide them with adequate stipends to pay for their
transportation to private schools within the county. The parents argued that failure to
provide either alternative violated their right to equal protection and their right to religious
freedom. The parents relied upon our earlier decision in Hughes, see note 11, supra, as
support for their constitutional claims. Justice Harshbarger, writing for a unanimous Court,
stated the following in Janasiewicz:
"But Hughes was wrongly decided on its Fourteenth Amendment equal protection issue. The equal protection clause is not violated by failure by a state to aid and support parochial or private schools. The United States Supreme Court explained in Norwood v. Harrison, 413 U.S. 455, 462, 93 S. Ct. 2804, 2809, 37 L.Ed.2d 723, 729 (1973):
"`In Pierce [v. Society of Sisters, 268 U.S. 510,
45 S. CT.. 571, 69 L.Ed. 1070 (1925)], the Court
affirmed the right of private schools to exist and
to operate; it said nothing of any supposed right
of private or parochial schools to share with
public schools in state largesse, on an equal basis
or otherwise. It has never been held that if private
schools are not given some share of public funds
allocated for education that such schools are
isolated into a classification violative of the Equal
Protection Clause. It is one thing to say that a
State may not prohibit the maintenance of private
schools and quite another to say that such schools
must, as a matter of equal protection, receive state
"'. . .Even as to church-sponsored schools
whose policies are nondiscriminatory, any
absolute right to equal aid was negated, at least by
implication, in Lemon v. Kurtzman, 403 U.S. 602
[91 S. CT.. 2105, 29 L.Ed.2d 745] (1971). The
Religion Clauses of the First Amendment strictly
confine state aid to sectarian education.'
"Later in that opinion the court recognized that the
Federal Constitution values the free exercise of religion and that
therefore a state may provide `neutral' services to sectarian
"`This does not mean, as we have already
suggested, that a State is constitutionally
obligated to provide even `neutral' services to
sectarian schools. But the transcendent value of
free religious exercise in our constitutional
scheme leaves room for `play in the joints' to the
extent of cautiously delineated secular governmental assistance to religious schools,
despite the fact that such assistance touches on
the conflicting values of the Establishment Clause
by indirectly benefiting the religious schools and
their sponsors. Norwood v. Harrison, supra 413
U.S., at 469, 93 S. CT.., at 2813 [37 L.Ed.2d, at
___].'" Janasiewicz, 171 W. VA.. at 425, 299
S.E.2d at 36-37. (Interest in original).
Our decision in Janasiewicz makes crystal clear that county school boards are
not constitutionally required to provide transportation services for parochial school children,
but that county school boards may provide such services.See footnote 12 It was reasoned in Janasiewicz
that: "Public and parochial school children may rationally be treated differently because they
are not similarly situated. . . . [A] parochial school student has chosen to reject a free public
education in favor of a privately paid education[.]" 171 W. Va. at 426, 299 S.E.2d at 37-38.
Therefore, this Court held in Syllabus Point 2 of Janasiewicz:
"The Equal Protection Clause of the Fourteenth Amendment is not violated by treating public and nonpublic school children differently in allocations of state aid and educationally-related resources. We overrule Syllabus Point 2 of [Hughes]."
In spite of our holding in Janasiewicz, we granted a writ of mandamus
that required county school board officials to provide either an adequate transportation stipend to parents whose children attended parochial schools in the county or create bus routes for those children. The opinion does not explicitly state why the relief was granted. However, a careful reading of the opinion informs this Court that county school board officials were already providing transportation stipends and bus services along public school routes to parents with children in parochial schools. Therefore, this Court merely required the county school board to "adequately" perform a service it had undertaken, but was not constitutionally or statutorily required to do.
In the instant proceeding, the respondent had undertaken the task of providing
school bus transportation services for petitioner's children and other Summers County
children to attend a parochial school in Monroe County. The respondents have now
terminated that service. The petitioner contends that our disposition of Janasiewicz controls
this case in that the respondents must either continue the bus transportation to Monroe
County or provide him with a transportation stipend. The petitioner wishes to extend
Janasiewicz further than we intended it to journey. Janasiewicz does not obligate a county
school board to provide school bus transportation or stipends for parochial school students.
Janasiewicz merely holds that if such a service is provided, it must be done adequately. We,
therefore, decline the invitation to extend Janasiewicz beyond its narrow holding.
The petitioner's claim, therefore, actually rests on whether the respondents may
arbitrarily or capriciously terminate a service they provided at their discretion. In Syllabus Point 1 of State ex rel. Payne v. Board of Education of Jefferson County, 135 W. Va. 349,
63 S.E.2d 579 (1951), we stated:
"Mandamus does not lie to control a board of education in the exercise of its discretion, in the absence of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of law upon the part of such board."
See, Syl. Pt. 5, State ex rel. Withers v. Board of Educ. of Mason County, 153 W. Va. 867,
172 S.E.2d 796 (1970). In Syllabus Point 2 of Beverlin v. Board of Education of Lewis
County, 158 W. Va. 1067, 216 S.E.2d 554 (1975), we stated:
"Arbitrary or capricious use of [discretionary authority] will not survive judicial scrutiny."
This Court confronted the question of terminating discretionary conduct by a county school
board in Pell v. Board of Education of Monroe County, 188 W. Va. 718, 426 S.E.2d 510
(1992). In that case, a Comprehensive Educational Facilities Plan (CEFP) was completed
by the Monroe County Board of Education and filed with the State Board of Education.
Under that plan, construction would begin on a new high school at Coulters Chapel for
grades 9 through 12; Peterstown and Union High Schools would be closed; the elementary
and junior high schools at Greenville would be closed; ninth-grade students would be
transferred to the new high school; and middle and elementary students would be placed at
Gap Mills, Union, or Peterstown. The CEFP plan was approved by the State Board of
Education and eventually the Monroe County Board of Education was awarded close to eight million dollars to carry out the plan, which was projected to actually exceed a cost of eight
million dollars. At the point the CEFP plan was put into operation, the county school board
decided to abort the plan.See footnote 13 Almost two hundred thousand dollars in expenses had been
incurred when the decision to abort was made. Additionally, halting of the CEFP plan was
said to jeopardize the funding granted for consolidation and closing of schools in the county.
Concerned citizens of Monroe County brought a mandamus proceeding in circuit court to
compel the county school board to continue with a plan that was discretionary in its
conception and implementation. The circuit court in that case granted the writ, after finding
the county school board acted arbitrarily and capriciously in making the decision to cease
discretionary conduct it had begun. On appeal to this Court, the county school board asked
that we reverse the decision of the circuit court.
The central issue for this Court in looking at the termination of discretionary
authority in Pell, was fathoming the reasons proffered by the county school board for its
decision to terminate the CEFP plan. This reasoning we found wholly lacking. In affirming
the circuit court's decision, we stated:
"If a comprehensive educational facilities plan has been developed by a county board of education, approved by the state board of education, submitted to a regional educational services agency, granted approval for funding on a priority basis by the state school building authority, satisfied all requirements for approval . . . and contracts have been entered into to begin implementation of such plan, then it is arbitrary and capricious for a county board of education, with no articulated reasons, to take action that would cause the plan to not be implemented or to replace such plan with an alternative plan, where such action would place in jeopardy the possibility of obtaining the approved funding." 188 W. Va. at 724, 426 S.E.2d at 516. (Emphasis added).
In the instant matter, the respondents contend that their decision to stop the
Ballard Christian run was not arbitrarily or capriciously done. The respondents cite what
appears to be extreme financial difficulties as the exclusive reason for terminating services
to the Ballard Christian School. The record indicates that as a result of past deficits and
projected deficits, the respondents were forced to (1) eliminate five teaching positions; (2)
reduce the length of employment terms for forty-five employees; (3) terminate supplemental
pay contracts for speech, band, and athletic programs; and (4) eliminate service personnel
positions. As part of their deficit reduction measures, the respondent terminated the Ballard
Christian run. "It does not appear that in the exercise of its discretion in [terminating the
Ballard Christian run] the [county] board of education, acted capriciously, arbitrarily, or in
any improper manner which justifies control of its action by mandamus." Payne, 135 W. Va.
at 358, 63 S.E.2d at 585. "We find no evidence of any misconduct on the part of the [county
school] [b]oard which would warrant such a finding." Cox v. Board of Educ. of the County
of Hampshire, 177 W. Va. 576, 581, 355 S.E.2d 365, 370 (1987). The petitioner concedes
that necessary deficit reduction measures caused the termination of the Ballard Christian run.
In spite of such concession, the petitioner spins reason on its head and persists in arguing that the termination of transportation services was an arbitrary or capricious act. Other than
hurling unpersuasive hollow-point platitudes, the petitioner did not offer any evidence that
mildly demonstrates where or how the respondents have acted arbitrarily or capriciously in
terminating the Ballard Christian run. We fathom no such evidence. The petitioner fails to
articulate any evidence. Therefore, the writ is denied.
Footnote: 1 The deficits incurred are as follows: (1990-91) $250, 343; (1991-92) $258,974; (1992-93) $393,620; (1993-94) $117,369; (1994-95) $306,226; and (1995-96) $360,620. The respondents project a deficit for the 1996-97 school year.
Footnote: 2 The projected savings from this cut is $90,000.
Footnote: 3 The projected savings from this cut is $55,000.
Footnote: 4 The projected savings from this cut is $55,000.
Footnote: 5 The projected savings from this cut is $170,000.
Footnote: 6 The respondents did not discontinue transporting Raleigh County resident students to Summers County schools. This service was continued because "the
enrollment of those students positively affects the funding formula and creates an increase in the amount of money provided to the county by the state for the operation of the school system."
Footnote: 7 The respondents assert the following statutes are applicable to them if they exceed the 3 percent limit: (1) W. VA.. Code, 11-8-31(removal from office, civil liability, and criminal liability); and (2) W. VA.. Code, 11-8-28, -29 and -30 (civil liability).
Footnote: 8 The children are Nellie, age 14, and Bethany, age 8.
Footnote: 9 During oral arguments, the petitioner took a different posture and argued, alternatively, that the respondents have a nondiscretionary duty to provide bus transportation. Our traditional rule of statutory construction is found in Syllabus Point 2 of Keen v. Maxey, 193 W. Va. 423, 456 S.E.2d 550 (1995):
"'"[']When a statute is clear and unambiguous
and the legislative intent is plain the statute should not be
interpreted by the courts, and in such a case it is the duty of
the courts not to construe but to apply the statute.['] Point 1,
syllabus, State ex rel. Fox v. Board of Trustees of the
Policemen's Pension or Relief Fund of the City of Bluefield,
et al., 148 W. VA.. 369 [135 S.E.2d 262 (1964) ]." Syllabus
Point 1, State ex rel. Board of Trustees v. City of Bluefield,
153 W. VA.. 210, 168 S.E.2d 525 (1969).' Syl. pt. 3,
Central West Virginia Refuse, Inc. v. Public Service Com'n of
West Virginia, 190 W. VA.. 416, 438 S.E.2d 596 (1993)."
Our examination of the language of the applicable statute in this case, W. Va. Code, 18-
5-13(6)(a) (1996), see note 10, infra, instructs us that it is without ambiguity and that the
legislature has not, as argued by the petitioner, mandated that county boards of education
provide school bus transportation services.
"'Where the language of a statute is plain and
unambiguous, there is no basis for application of rules of
statutory construction; but courts must apply the statute
according to the legislative intent plainly expressed therein.'
Syllabus, Dunlap v. State Compensation Director, 149 W. Va.
266 (140 S.E.2d 448) ." Syl. Pt. 1, Kucera v. City of
Wheeling, 153 W. Va. 531, 170 S.E.2d 217, (1969).
See Adkins v. City of Huntington, 191 W. Va. 317, 320, 445 S.E.2d 500, 503 (1994).
Footnote: 10 The controlling statute on this issue is W. VA.. Code, 18-5-13(6)(a), which provides in pertinent part:
"The boards, subject to the provisions of this
chapter and the rules of the state board, has [sic] authority:
* * *
"(6)(a) To provide at public expense adequate means of transportation, including transportation across county lines, for all children of school age who live more than two miles distance from school by the nearest available road[.]
Footnote: 11 In State ex rel. Hughes v. Board of Education of Kanawha County, 154 W. Va. 107, 174 S.E.2d 711 (1970), overruled in part by Janasiewicz, supra, we held that providing bus transportation by county boards of education for students attending religious schools did not violate the First Amendment to the United States Constitution or Section 15 of Article III of the West Virginia Constitution.
Footnote: 12 In Syllabus Point 1 of Janasiewicz, supra, we held: "W. VA.. Code, 18-5- 13(6)(a) allows a county school board to provide all school-age children with adequate means of transportation. Full monetary stipends to pay for such transportation, and permission to ride school buses on regularly scheduled bus routes, comply with this statute." (Emphasis added).
Footnote: 13 The authority to consolidate and close schools is a discretionary power granted under W. Va. Code, 18-5-13(3) and (4).