Daniel F. Hedges
Charleston, West Virginia
Attorney for Petitioners
John S. Dalporto
Assistant Attorney General
Charleston, West Virginia
Attorney for Respondent West Virginia
State Board of Education
William R. Wooton
Wooton, Wooton & Fragile
Beckley, West Virginia
Attorney for Respondent West Virginia
Secondary Schools Activities Commission
JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE NEELY dissents, and reserves the right to file a dissenting opinion.
1. When a student has a disability requiring special
assistance or services to enable participation in school-sanctioned
extracurricular activities, a request for assistance or services
can be made on the student's behalf to any school official familiar
with the student's needs. That school official then has the
responsibility to inform the county board of education's director
of special education of the request so that appropriate action can
2. "Equal protection of the law is implicated when a
classification treats similarly situated persons in a
disadvantageous manner." Syl. Pt. 2, in part, Israel ex rel.
Israel v. West Virginia Secondary Sch. Activities Comm'n, 182 W.
Va. 454, 388 S.E.2d 480 (1989).
3. "A gender-based classification challenged as denying equal
protection under Article III, Section 10 of the West Virginia
Constitution can be upheld only if the classification serves an
important governmental objective and is substantially related to
the achievement of that objective." Syl. Pt. 5, in part, Israel ex rel. Israel v. West Virginia Secondary Sch. Activities Comm'n, 182
W. Va. 454, 388 S.E.2d 480 (1989).
4. Since the scheduling of the girls' high school basketball
season outside the time period traditionally observed as the
official basketball season serves no important governmental
objective, it is unconstitutional as it violates the equal
protection clause set forth in Article III, § 10 of the West
5. "Rule-making by the State Board of Education is within the
meaning of 'general supervision' of state schools pursuant to art.
XII, § 2 of the West Virginia Constitution, and any statutory
provision that interferes with such rule-making is
unconstitutional." Syl. Pt. 2, in part, West Virginia Bd. of Educ.
v. Hechler, 180 W. Va. 451, 376 S.E.2d 839 (1988).
6. Notwithstanding the transfer of supervisory authority over
interscholastic athletic events and other extracurricular
activities to county boards of education and the West Virginia
Secondary School Activities Commission, West Virginia Code § 18-2-
25 (1994) is constitutional, since it is clear that the
Legislature, in enacting said statute, only intended to permit
county boards of education and the West Virginia Secondary School
Activities Commission to supervise and to regulate extracurricular activities subject to the West Virginia State Board of Education's
duty under Article XII, § 2 of the West Virginia Constitution to
generally supervise the schools in this state.
In this original proceeding, the Petitioners, Diana Lambert
and her parents, Kathleen and Hobert Lambert, seek a writ of
mandamus against the Respondents, the West Virginia State Board of
Education (hereinafter referred to as the Board) and the West
Virginia Secondary School Activities Commission (hereinafter
referred to as the SSAC), 1) to compel the Board to exercise the
general supervisory authority it has pursuant to Article XII, § 2
of the West Virginia ConstitutionSee footnote 1 over extracurricular athletic
and band activities, and to declare West Virginia Code § 18-2-25
(1994) unconstitutional in that the statute attempts to divest or
transfer the Board's constitutional general supervisory authority
to the county boards of education and the SSAC; 2) to order the
Lincoln County Board of Education to provide Diana Lambert, a deaf
student at Guyan Valley High School in Lincoln County, West
Virginia, with a signer so that she may participate in the
extracurricular activity of basketball during the 1994-95 school year; and 3) to order that girls be permitted to schedule their
extracurricular basketball activities within the traditional normal
winter basketball season in which boys' basketball is played and
further order that the girls be afforded equal access with the boys
to appropriate facilities in the public schools for basketball
practice and games. Based upon the parties' briefs and arguments,
the record and all other matters submitted before this Court,See footnote 2 we
grant the writ sought by the Petitioners with regard to the signer
and the girls' basketball season; however, we deny the writ as it
relates to the constitutionality of West Virginia Code § 18-2-25.
Because the Petitioners raise three separate and distinct issues in
their petition, we address each issue separately.
Diana Lambert is an eleventh-grade student at Guyan Valley
High School in Branchland, Lincoln County, West Virginia. She has
been deaf since birth and has a signer for her basic courses, but
is not provided a signer for her vocational classesSee footnote 3 or her
Ms. Lambert has participated in school athletics since sixth
grade, and played for the Guyan Valley High School's girls'
basketball team during her freshman and sophomore years without a
signer. Ms. Lambert's coach, Jim Nelson, stated in an affidavit,
dated May, 31, 1994, that he knew of her disability prior to when
she started high school and he took several steps in order to meet
her special needs, including obtaining assistance from a student
speech pathologist so that he would know how to effectively
communicate with her. Ms. Lambert's father also frequently
attended practices and on occasion would interpret for his
In October 1993, during her junior year, Mr. Lambert suggested
to Coach Nelson that a signer might be of assistance to his
daughter because she was having trouble understanding the coach's
directions. During that same month, Coach Nelson spoke with Mr.
Doug Smith, Director of Special Education for Lincoln County, about
the possibility of a signer for Ms. Lambert, and informed Mr. Smith
that Mr. and Mrs. Lambert were going to make a request for a signer
for their daughter. On October 19, 1993, Ms. Lambert's principal,
Paul "Skip" Winters, received a request from Mr. Lambert for a
signer. Mr. Winters referred Mr. Lambert to Mr. Smith. Neither
Ms. Lambert nor her parents ever contacted Mr. Smith. Ms. Lambert
was never provided with a signer. She was dismissed from the basketball team by Coach Nelson just prior to post-season
tournament play at the end of the season.See footnote 4
In December 1993, according to Petitioner's brief, the
Petitioners' counsel stated that he approached Mr. Smith about the
Petitioners' request for a signer, and was informed that Ms.
Lambert would not be afforded a signer. By letter dated March 24,
1994, the Petitioners' counsel inquired of Dr. Henry R. Marockie,
State Superintendent of Schools, as to why Ms. Lambert had not been
afforded a signer. Dr. Marockie first responded to the
Petitioners' counsel's inquiry by letter dated April 1, 1994, that
"Diana Lambert does appear to be entitled to a signer or some
assistance from the Lincoln County Board of Education for . . .
extracurricular courses[,]" Dr. Marockie also stated that "her [Ms.
Lambert's] claim is outside my jurisdiction[,]" and that the SSAC
should be contacted for a remedy. However, by letter dated April
6, 1994, from Victor A. Barone, Director of Legal Services for the West Virginia Department of Education, to Ms. Jan Pannett,
Assistant Secretary of the SSAC, Mr. Barone indicated that he had
advised the Petitioners' counsel that he was not sure that the
Petitioners' claim was outside the Board's jurisdiction and that he
was requesting that the Lincoln County Superintendent look into the
The Individuals with Disabilities Education Act, 20 U.S.C §§
1400 to 1485 (1989 and Supp. 1994) (hereinafter referred to as the
"IDEA"), requires certain types of support services and
accommodations for handicapped students and children with special
needs, and also charges state educational agencies with the full
responsibility for implementing regulations for handicapped
students. See 20 U.S.C. § 1412(6); see generally Zobrest v.
Catalina Foothills Sch Dist., 125 L.Ed 2d 1, 14 (1993) (stating
that "[t]he IDEA creates a neutral government program dispensing
aid not to schools but to individual handicapped children."). The
IDEA, implemented by the code of federal regulations, specifically
provides that "[e]ach public agencySee footnote 5 shall take steps to provide
nonacademic and extracurricular services and activities in such manner as is necessary to afford children with disabilitiesSee footnote 6 an
equal opportunity for participation in those services and
activities." 34 C.F.R. § 300.306(a) (1993) (footnotes added).
Additionally, the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 to
797b (1985 and Supp. 1994), as implemented by 34 C.F.R. § 104.37
(1993), provides that
(a) General. (1) A recipientSee footnote 7 to which this subpart applies shall provide nonacademic and extracurricular services and activities in such manner as is necessary to afford handicapped students an equal opportunity for participation in such services and activities.
(2) Nonacademic and extracurricular services and activities may include . . . physical recreational athletics . . . .
. . . .
(c) Physical education and athletics. (1) In providing physical education courses and athletics and similar programs and activities to any of its students, a recipient to which this subpart applies may not discriminate on the basis of handicap. A recipient that offers physical education courses or that operates or sponsors interscholastic, club, or intramural athletics shall provide to qualified handicapped students an equal opportunity for participation in these activities.
34 C.F.R. § 104.37(a) and (c)(1) (footnote added); see generally 42 U.S.C. §§ 12101 to 12213 (Supp. 1994) (Americans with Disabilities Act of 1990).
The SSAC conceded and the Board acknowledged that the Board
has full responsibility for implementing these federal statutes as
well as the state statutes dealing with disabled individuals.See footnote 8 See
W. Va. Code §§ 5-11-1 to -19 (1994 and Supp. 1994) (West Virginia
Human Rights Act prohibiting discrimination based upon handicap in
places of public accommodation); see generally 6 W. Va. C.S.R. §§
77-1-4.4 to -4.5 (West Virginia Human Rights Commission's rules
regarding discrimination in employment arena against handicapped).
Indeed, the Board has promulgated the following policies pertaining
to individuals with disabilities: "If you are handicapped . . .
and in need of special education and related services, your parents
or guardian should contact the county's Director of Special
Education[,]" and "As a student, you may not be denied the right to
participate in extracurricular activities because of your . . .
disability . . . ." State Board Policy 4372, Student Handbook of
Rights and Responsibilities, §§ II and IV. Further, State Board
Policy 4200 includes the following provision: "Members of both sexes, regardless of their race, color, religion, handicapping
condition, age or national origin, must be granted equal access to
extracurricular activities." 9 W. Va. C.S.R. § 126-82-3.4.
In the present case, the Board and the SSAC agree that if Ms.
Lambert "effectively requested the assistance of a signer," "upon
request and investigation, [if] the assistance of a signer is
deemed a reasonable accommodation, necessary to provide the student
with equal access to extracurricular activities, then she is
entitled to such assistance." The Respondents rely heavily on
their contention that Ms. Lambert's parents never officially
requested a signer from the Lincoln County Director of Special
Education. Thus, the Respondents continue to assert the position
that a request was never made to provide a signer for Ms. Lambert
during extracurricular activities, and accordingly a signer was
never provided. However, the Respondents inexplicably refuse to
acknowledge that Mr. Lambert made requests of Coach Nelson and Mr.
Winters, Ms. Lambert's principal, to provide his daughter with a
signer. Further, affidavits submitted by the SSAC indicate that
Coach Nelson spoke with Mr. Smith regarding Mr. Lambert's request.
Finally, the Petitioners' counsel spoke with not only Mr. Smith,
but also with Dr. Marockie about the Petitioners' request for a
Given that all these requests were made to various
representatives of both the county board of education and the
Board, the Respondents continue to predicate their duty to provide
Ms. Lambert with a signer for the upcoming 1994-95 basketball
season on an "effective" request being made by Ms. Lambert's
parents to Mr. Smith.See footnote 9 The Respondents' position is unpersuasive
and seemingly based neither in the law, nor in basic common sense,
but in bureaucratic red tape. It is understandable that a disabled
individual's request must be processed by the director of special
education within a county so that services can be investigated and
coordinated; but it is incomprehensible why that request can only
be made by the parent to the director of special education,
especially where the director learns of the request. It is
apparent that oftentimes, as in the present case, a parent will
request assistance in obtaining services for a disabled child from
a principal, teacher, or coach. It is also logical that each of
these individuals may be more familiar with the student's needs,
and better able to explain the necessity for the special assistance
with a director of special education than the parent. Finally,
while the policy in the student's handbook provides that requests
for services for handicapped individuals must be made by the
parent, no other provision contained within either state or federal statutes or regulations imposes such a requirement on these
requests. See State Board Policy 4372, supra, at § II.
Accordingly, we hold that when a student has a disability
requiring special assistance or services to enable participation in
school-sanctioned extracurricular activities, a request for
assistance or services can be made on the student's behalf to any
school official familiar with the student's needs. That school
official then has the responsibility to inform the county board of
education's director of special education of the request so that
appropriate action can be taken.
In the present case, we conclude that both direct and indirect
requests were made of several different school officials that Ms.
Lambert be provided with a signer for the upcoming basketball
season. Further, since the Lincoln County Board of Education has
already determined that Ms. Lambert needs a signer for her basic
academic classes, there would generally be no necessity for the
Board to further investigate her request for a signer for
extracurricular activities as well. Therefore, we direct the
Lincoln County Board of Education to provide her with a signer for
her school-sanctioned extracurricular activity of basketball.
The Petitioners next contend that the directives of the SSAC, which not only require that the girls play their basketball games outside the traditional basketball season rather than during the traditional basketball season,See footnote 10 but also limit the girls' organized practices to half the time allotted to boys,See footnote 11 discriminate against girls on the basis of their gender in violation of Article III, § 10 of the West Virginia ConstitutionSee footnote 12 and the West Virginia Human Rights Act, West Virginia Code §§ 5-11-1 to -19 (1994).See footnote 13 The SSAC, in its brief, contends that while it is the Board's decision as to when the girls' basketball season is played, seasonal placement alone is not dispositive of the question of whether female athletes have been denied equal protection under the law.See footnote 14
We gave the Board an opportunity to present us with any
information which would justify the continuation of the current
scheduling system, such as facility limitations, personnel or
financial constraints, or other obstacle. However, the Board
provided no such information, nor did they enunciate any compelling
governmental objective which might be served by the current system.
In fact, the Board, when it finally took a position, agreed with
the Petitioners that the girls' basketball season should be changed
to coincide with the traditional basketball season, and merely
requested that this Court allow them a year to implement the
scheduling change. The Board took no position on the
constitutionality of the scheduling. However, state rules promulgated by the Board relating to equal opportunities in West
Virginia public schools in the area of extracurricular activities
expressly mandate equal access to extracurricular activities for
both sexes. See 9 W. Va. C.S.R. § 126-82-3.4 to -3.5.2; see also
State Board Policy 4372, supra, at § IV.
The Petitioners' argument is premised upon a letter dated
March 22, 1992, from Dr. Marockie to Mr. Warren Carter, Executive
Secretary of the SSAC, which indicated that "[t]he Board wants to
have a definitive study completed on the impact of changing [the
girls' basketball season] from fall to winter." They [the Board]
directed that Dr. Keith Smith work with the SSAC to complete and
bring to the Board the information on the movement of the girls
season from fall to winter." Further, the Board, in requesting
such study, indicated that it was interested in "shifting the
season from fall to winter." A study was undertaken by the SSAC,
but after the study was completed, the Board did not take a
position on changing the season, and the SSAC maintained the status
quo. It was not until after the Court ordered the Board to take a
position on the scheduling of the girls' basketball season, that
the Board conducted a special meeting on June 16, 1994, and adopted
a motion stating "(1) that girls' basketball should be played
within the normal winter basketball season in which boys'
basketball is played, and (2) that the board develop, by November,
1994, a plan for implementing this change."
This Court addressed the issue of whether gender-based discrimination in public school sports violated the equal protection clause under the West Virginia Constitution in Israel ex rel. Israel v. West Virginia Secondary Schools Activities Commission, 182 W. Va. 454, 388 S.E.2d 480 (1989). In Israel, a female high school student brought a gender discrimination claim against the secondary school activities commission and the county board of education after she was refused the opportunity to play on the boys' high school baseball team because her high school had a girls' softball team. Id. at 456, 388 S.E.2d at 482. We held that "[e]qual protection of the law is implicated when a classification treats similarly situated persons in a disadvantageous manner." Id. at 455, 388 S.E.2d at 481, Syl. Pt. 2, in part. Further, "[a] gender-based classification challenged as denying equal protection under Article III, Section 10 of the West Virginia Constitution can be upheld only if the classification serves an important governmental objective and is substantially related to the achievement of that objective." Id., Syl. Pt. 5, in part.
Even though we recognized in Israel that other "courts have
recognized that it is constitutionally permissible under certain
circumstances for public schools to maintain separate sports teams
for males and females so long as they are substantially
equivalent[,]" we also stated that "this does not mean that mere superficial equivalency will be found constitutional under equal
protection principles." Id. at 458, 459, 388 S.E.2d at 484, 485.
We then examined the similarities and differences between baseball
and softball before reaching the conclusion that the two sports
were not substantially equivalent. Id. at 459, 388 S.E.2d at 485.
We concluded that the regulation which prohibited a female student
from playing on the boys' baseball team as long as the school
maintained a girls' softball team violated federal and state
constitutional equal protection standards. Id. at 462, 388 S.E.2d
Guided by the principles enunciated in Israel, we examine the
scheduling of girls' basketball in the nontraditional season, as
opposed to the traditional scheduling when girls' basketball is
scheduled in a majority of the states, along with boys' basketball
and men's and women's college basketball, and professional
basketball. The scheduling of girls' high school athletics in a
manner which is counter-conventional creates significant
disadvantages for female athletes which are not shared by male
athletes. These disadvantages include effective exclusion from
interstate competition and tournaments, since surrounding states
including Pennsylvania, Ohio, Kentucky, Maryland and Virginia,See footnote 15 schedule girls' basketball in the winter. Also, female basketball
players are more often at a disadvantage with regard to college
recruiter access.See footnote 16 Further, female basketball players are afforded
access to gyms for organized practices for only two weeks during
hot summer months, as opposed to the four weeks of organized
practice time afforded male basketball players during the late fall
and winter months. Finally, because the girls currently do not
play during the traditional season, they do not reap the benefits
which normally come with the traditional season, including greater
interest in basketball by the public, media and college recruiters.
Perhaps more compelling than any unfairness to actual female
basketball players is the message this scenario conveys to girls in
general, that girls' sports are second-class, that boys take
priority as to use of sports facilities and resources, and girls
take the leavings. Hence, the message conveyed to young girls in
this state is that they are not as important as the boys.
Therefore, we conclude that the scheduling of girls'
basketball in the nontraditional season, as well as the access to
organized practice time afforded to girls' basketball teams
constitute a "mere superficial equivalency." Israel, 182 W. Va. at
459, 388 S.E.2d at 485. Since the scheduling of the girls' high
school basketball season outside the time period traditionally
observed as the official basketball season serves no important
governmental objective, it is unconstitutional as it violates the
equal protection clause set forth in Article III, § 10 of the West
Virginia Constitution. We hereby direct the Board to submit to
this Court by November 1, 1994, its plan to change the girls'
basketball season to the winter beginning with the 1995-96 school
Finally, we address whether West Virginia Code § 18-2-25 which
establishes the SSAC and grants authority to county boards of
education to control, supervise and regulate all interscholastic
athletic events, and other extracurricular activities in the
secondary school system violates Article XII, § 2 of the West
Virginia Constitution, which establishes the Board's general
supervisory powers over the schools of this state. The Petitioners
contend that West Virginia Code § 18-2-25 is unconstitutional in
that it effectively transfers the Board's constitutional duty to supervise the school system to the SSAC and county boards of
education. See W. Va. Const. art. XII, § 2.See footnote 17 In contrast, the
Respondents argue that West Virginia Code § 18-2-25 does not
divest the Board of its constitutional duty to generally supervise
the state schools. Further, the Respondents assert that the
statute does not delegate any authority to the SSAC nor does it
vest exclusive authority in county boards of education with respect
to the regulation of extracurricular activities as recognized by the Court in Bailey v. Truby, 174 W. Va. 8, 321 S.E.2d 302 (1984).
The Respondent Board took this position only after this Court
ordered it do so. The SSAC in essence acknowledges that it is
under the direction of the Board with respect to its
constitutionally mandated responsibilities.
Article XII, § 2 of the West Virginia Constitution mandates
that "[t]he general supervision of the free schools of the State
shall be vested in the West Virginia board of education which shall
perform such duties as may be prescribed by law." In conformity
with this constitutional mandate, West Virginia Code § 18-2-5
Subject to and in conformity with the constitution and laws of this state, the state board of education shall exercise general supervision of the public schools of the state, and shall make rules in accordance with the provisions of article three-b [§ 29A-3B-l et seq.], chapter twenty-nine-a of this code for carrying into effect the laws and policies of the state relating to education, including rules relating to standards for performance and measures of accountability, the physical welfare of pupils, the education of all children of school age, school attendance, evening and continuation or part-time day schools, school extension work, the classification of schools, the issuing of certificates upon credentials, the distribution and care of free textbooks by the county boards of education, the general powers and duties of county boards of education, and of teachers, principals, supervisors and superintendents, and such other matters pertaining to the public schools of the state as may seem to the state board to be necessary and expedient.
The Petitioners argue that West Virginia Code § 18-2-25 allows county boards of education and the SSAC to usurp the Board's constitutional and statutory duty to generally supervise the schools. That statute provides, in pertinent part:
The county boards of education are hereby granted and shall exercise the control, supervision and regulation of all interscholastic athletic events, and other extracurricular activities of the students in public secondary schools, and of said schools of their respective counties. The county board of education may delegate such control, supervision and regulation of interscholastic athletic events and band activities to the 'West Virginia secondary school activities commission,' which is hereby established.
. . . The West Virginia secondary school activities commission is hereby empowered to exercise the control, supervision and regulation of interscholastic athletic events and band activities of secondary schools, delegated to it pursuant to this section. The rules and regulations of the West Virginia secondary school activities commission . . . shall, . . . in all instances be subject to the prior approval of the state board.
W. Va. Code § 18-2-25 (emphasis added).
The Petitioners' argument is flawed for several reasons. The
Petitioners fail to acknowledge the existence of language in West
Virginia Code § 18-2-5 which specifically provides that the Board
"shall exercise general supervision of the public schools of the
state, and shall make rules . . . for carrying into effect the laws
of policies of the state relating to education, including . . . the general powers and duties of county boards of education . . . ."
The Petitioners also fail to acknowledge the significance of the
following provision of West Virginia Code § 18-2-25: "The rules
and regulations of the West Virginia secondary school activities
commission . . . shall . . . in all instances be subject to the
prior approval of the state board." See also W. Va. Code § 18-5-13
(1994) (setting forth authority of school boards). To overlook
these statutory provisions is to disregard the clear intent of the
Legislature that the ultimate control over the county boards of
education, as well as the SSAC, rests with the Board.
Additionally, the Petitioners failed to properly analyze this
Court's decision in Bailey, where we indirectly addressed the
constitutionality of West Virginia Code § 18-2-25. 174 W. Va. at
8, 321 S.E.2d at 302. In Bailey, we consolidated two actions
concerning the validity of academic eligibility requirements for
participation in extracurricular activities. In the first action,
the Wood County Board of Education sought a writ of mandamus to
compel the state board to withdraw a rule requiring students to
maintain a "C" grade point average in order to participate in
extracurricular activities. The second action was an appeal by a
high school student from a denial of injunctive relief sought to
prohibit the Kanawha County Board of Education rule requiring
students to receive passing grades in all of their classes, in
addition to the requirement that they maintain a 2.0 grade point average, in order to participate in extracurricular activities.
Id. at 11, 321 S.E.2d at 305.
The petitioners in Bailey contended that "the Legislature, in
enacting West Virginia Code § 18-2-25 . . . intended to vest
exclusive authority in county boards of education with respect to
the regulation of extracurricular activities." Id. at 16, 321
S.E.2d at 311. In rejecting the petitioners' argument, we stated
that "[f]irst, such a result does not appear to be what the
Legislature intended. Second, even if such a result was intended
by the Legislature, it must fail to the extent that it interferes
with the State Board of Education's exercise of general supervision
over our state's educational system." Id.
We then discussed several factors which indicated to us that
the Legislature did not intend to vest exclusive control over
extracurricular activities with the county boards of education.See footnote 18
Id. at 17, 321 S.E.2d at 311. First, West Virginia Code § 18-2-25
is not located in the article of the code dealing with the
structure and function of county boards of education, but rather is located within the article pertaining to the state board. Id.
Thus, we concluded that "the Legislature assumed that, prior to the
enactment of West Virginia Code § 18-2-25 . . . exclusive control
of extracurricular activities vested in the State Board of
Education." Id. Second, we referenced not only the portion of
West Virginia Code § 18-2-25 which created the secondary school
activities commission, but also the portion of the statute which
gives the state board final approval over all rules and regulations
enacted by the secondary activities commission. Id. We found that
the Legislature's creation of the secondary school activities
commission to which the county school boards could delegate
authority regarding extracurricular activities, as well as the
state board retaining final approval over the secondary school
activities commission's actions indicated that West Virginia Code
§ 18-2-25 was not intended to vest county school boards with
exclusive control. Id. The final factor used to support our
conclusion regarding West Virginia Code § 18-2-25 was "the
existence of other statutory provisions governing the
interrelationship between the State Board of Education and county
boards of education indicates that the Legislature intended to
permit county board[s] of education regulation of extracurricular
activities subject to the general supervision of the State Board of
Education." Id; see W. Va. Code §§ 18-2-5 and 18-5-3.
We subsequently affirmed the Board's constitutional duty to
generally supervise the schools without any interference from the
Legislature in West Virginia Board of Education v. Hechler, 180 W.
Va. 451, 376 S.E.2d 839 (1988), where we addressed the
constitutionality of statutory provisions requiring the Board to
submit Board approved legislative rules to an oversight commission
created by the Legislature for review. Under that statute, the
oversight commission, upon review, was required to recommend that
the Legislature either promulgate the rule in whole or in part or
recommend withdrawal of the rule. If the Legislature failed to act
on a rule submitted by the oversight commission, then the Board was
prohibited from taking any further action on the rule. Id. at 452-
53, 376 S.E.2d at 840. In declaring those provisions
unconstitutional, this Court held in syllabus point two of Hechler
that the "[r]ule-making by the State Board of Education is within
the meaning of 'general supervision' of state schools pursuant to
art. XII, § 2 of the West Virginia Constitution, and any statutory
provision that interferes with such rule-making is
unconstitutional." 180 W. Va. at 452, 376 S.E.2d at 839, Syl. Pt.
2, in part.
Following our decisions in Bailey and Hechler, we hold that
notwithstanding the transfer of supervisory authority over
interscholastic athletic events and other extracurricular
activities to county boards of education and the SSAC, West Virginia Code § 18-2-25 (1994) is constitutional, since it is clear
that the Legislature, in enacting said statute, only intended to
permit county boards of education and the SSAC to supervise and to
regulate extracurricular activities subject to the Board's duty
under Article XII, § 2 of the West Virginia Constitution to
generally supervise the schools in this state.
Based on the foregoing, the Petitioners' writ of mandamus is
granted with regard to the request for a signer and the change in
the girls' basketball season; however, the writ is denied as it
relates to the constitutionality of West Virginia Code § 18-2-25.
The Board is hereby ordered to provide Ms. Lambert with a signer
for the 1994-95 basketball season, and to change the girls' high
school basketball season beginning with the 1995-96 school year,
submitting to this Court its plan for implementing said change by
November 1, 1994.
Footnote: 1It is significant to note that the Board originally failed to take a position on the issues in the present case. This Court, by order dated June 13, 1994, ordered the Board's participation.
Footnote: 2Amicus curiae briefs submitted by the West Virginia Women's Commission and the West Virginia Human Rights Commission were considered by this Court in rendering its decision.
Footnote: 3The record before us reflects no request by the Petitioners that Ms. Lambert be provided a signer for her vocational courses and therefore, we do not address this potential issue.
Footnote: 4There is a factual dispute as to why Ms. Lambert was dismissed from the basketball team. The Petitioners maintain that the dismissal was due to her disability in that she could not understand the coach's directions. In contrast, the Respondents assert that Ms. Lambert's dismissal stemmed from a reduction in playing time due to injuries she had sustained, which ultimately resulted in Ms. Lambert engaging in misconduct due to her frustration. Coach Nelson disciplined her for the misconduct, which resulted in Ms. Lambert's dismissal from the team. However, the fact remains, that regardless of why Ms. Lambert was dismissed from the team, she did request the assistance of a signer for basketball practices and games.
Furthermore, Coach Nelson subsequently informed Ms. Lambert that she could play on the team during her senior year.
Footnote: 5Public agency includes individualized education program, local educational agency, state educational agency, and "any other political subdivisions of the State that are responsible for providing education to children with disabilities." 34 C.F.R. § 300.14.
Footnote: 6Children with disabilities includes a child with deafness or a hearing impairment. See 34 C.F.R. § 300.7 (1993).
Footnote: 7A "recipient" is defined as "any state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient . . . ." 34 C.F.R. § 104.3(f) (1993).
Footnote: 8The Board indicates that even though it is the Board's responsibility to promulgate these policies and to supervise their implementation, it is the county board of education's responsibility to handle the requests for services by a handicapped student, and to provide said services.
Footnote: 9It is fairly incredible that even after this petition was brought in the West Virginia Supreme Court of Appeals, the Respondents continued to recognize no "effective" request.
Footnote: 10West Virginia is only one of five states which schedules girls' basketball during the fall rather than the winter.
Footnote: 11The girls have two weeks of organized practice, while boys have four weeks of organized practice.
Footnote: 12Article III, § 10 of the West Virginia Constitution provides that "[n]o person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers." This Court in syllabus point 4 of Israel ex rel. Israel v. West Virginia Secondary Schools Activities Commission, 182 W. Va. 454, 388 S.E.2d 480 (1989), held that "West Virginia's constitutional equal protection principle is a part of the Due Process Clause found in Article III, Section 10 of the West Virginia Constitution."
Footnote: 13We resolve this issue under the equal protection claim, finding that the girls' basketball season as it currently exists is unconstitutional gender-based discrimination. However, it is clear that the West Virginia Human Rights Act also guarantees "equal access to places of public accommodations" to all individuals regardless of "race, religion, color, national origin, ancestry, sex, age, blindness or handicap." W. Va. Code § 5-11-2. This Court in Israel found that for the purposes of the Act, the SSAC is a "place of public accommodations." 182 W. Va. at 463, 388 S.E.2d at 489. Further, in syllabus point 2 of Board of Education v. West Virginia Human Rights Commission, 182 W. Va. 41, 385 S.E.2d 637 (1989), we held that a county board of education was not only considered a "'place of public accommodations,'" but that it "may not discriminate against the handicapped in violation of W. Va. Code, 5-11-9(f), as amended."
See 6 W. Va. C.S.R. § 77-1-7.2 and -7.4.
Footnote: 14The SSAC also argues that the issue concerning the constitutionality of the placement of the girls' basketball season is now moot since the Board has voted to change the season from the fall to the winter. We disagree; the issue has not been fully resolved since, without a court order, the Board may at any time change their policy, and revert the girls' basketball season back to the fall, or decide not to implement the new policy at all. See also Syl. Pt. 1, Israel, 182 W. Va. at 455, 388 S.E.2d at 481 ("while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public").
Footnote: 15In Virginia, girls' basketball is set up under a two-tier system, with teams from schools with less than 1,000 students enrolled playing in the fall and those with greater than 1,000
students enrolled playing in the winter.
Footnote: 16The SSAC submitted the affidavits of Paul Flores, California University girls' basketball coach, and David Gaudino, Director of the West Virginia Girls' Basketball Poll and the assistant coach for John Marshall High School, who both indicated that a change of the girls' basketball season from the fall to the winter would be detrimental to female athletes. However, there was also an affidavit submitted by Sarah Leigh Evans-Moore, the head coach for women's basketball at Marshall University, who indicated that under the present scheduling, girls in this state are at a disadvantage when it comes to recruiting by Division I women's college basketball programs due to the fall schedule.
Footnote: 17As part of their constitutional argument, the Petitioners assert that the SSAC is improperly composed of only males. Specifically, the Petitioners argue that the SSAC's twenty-nine officers are all male. The Petitioners further stated in oral argument that the SSAC was a closed group with essentially a self-selection system. West Virginia Code §18-2-25 does establish a membership system which is sex-neutral on its face, by providing that the SSAC "shall be composed of the principals, or their representatives" of those county boards of education which have delegated the supervision of extracurricular activities to the SSAC. See 9 W. Va. C.S.R. § § 127-1-4 to -1-6 and -1-8. Further, the SSAC maintains that it presently has two female officers and twenty-seven male officers.
Additionally, while the West Virginia Code of State
Regulations provides that "[t]o be eligible for participation in
interscholastic athletics a student must be enrolled in a member
school on or before the eleventh instructional day of the
semester in which he competes[,]" the term "member school" is not
defined. 9 W. Va. C.S.R. § 127-2-3.1. The Respondent Board
represented to the Court during oral argument not only that
secondary schools did not have to be a member of the SSAC to
participate in interscholastic sports, but also that the SSAC was
going to stop collecting dues charged for membership in the SSAC.
Finally, since, according to the Respondent SSAC's brief, approximately 50% of the students in West Virginia's secondary schools are female, and since many of those female students participate in extracurricular activities governed by the SSAC, it would certainly behoove the SSAC to seek greater female representation in its management and decision making.
Footnote: 18But see State ex rel. Manchin v. West Virginia Secondary Sch. Activities Comm'n, 178 W. Va. 699, 701, 364 S.E.2d 25,
27 (1987)("There are other more troubling issues that are not before us, such as whether the legislature may authorize county boards of education to delegate supervision of certain activities to a commission such as the SSAC or, if so, the permissible extent of such delegation.").