Link to PDF file
No. 31785 _ Daniel
Jones and Christie Jones v. West Virginia State Board of Education; State
Superintendent David Stewart; Marion County Board of Education; Marion
County Superintendent Thomas Long; and West Virginia Secondary School Activities
Commission; West Virginia State Board of Education and State Superintendent
No. 31786 _ Daniel
Jones and Christie Jones v. West Virginia State Board of Education; State Superintendent
David Stewart; Marion County Board of Education; Marion County Superintendent
Thomas Long; and West Virginia Secondary School Activities Commission; West
Virginia Secondary Schools Activities Commission
Starcher, J., dissenting:
majority opinion strains to reach a wrong result.
is not a shred of evidence that any home-schooled child would in any way do anything
but enhance interscholastic athletics. I wish that the majority had not wanted
to protect the convenience of coaches over the rights of children and parents.
and I assert as grounds for that dissent the learned opinion by Circuit Judge
Louis Bloom, who properly applied the applicable constitutional law. The reader
can compare the majority opinion's reasoning with Judge Bloom's. Following is
Judge Bloom's opinion in the lower court:
the 13th day of February 2003, came the plaintiffs, Daniel and Christie Jones,
in person and by their counsel, Randal A. Minor, and came also defendants West
Virginia State Board of Education and Dr. David Stewart, State Superintendent
of Education, by their counsel, Barbara H. Allen, Managing Deputy Attorney
General, defendant West Virginia Secondary School Activities Commission, by
its counsel, William R. Wooton, and defendants Marion County Board of Education and Thomas Long, Marion
County Superintendent of Schools, by their counsel, Robert L. Coffield, for
a final hearing in the above-styled action. By order entered on January 14,
2003, the court had heretofore granted the plaintiffs' motion for a preliminary
injunction, thereby allowing the plaintiffs' son to join the Mannington Middle
School wrestling team for the 2002- 2003 school year.
leave of court, the West Virginia Educational Association filed an amicus brief.
Upon mature consideration of said amicus brief, the pleadings, memoranda and
arguments of the parties, the pertinent law and all matters of record, the court
hereby finds and concludes as follows:
1. The plaintiffs, Daniel
and Christie Jones (hereafter jointly the plaintiffs), reside in
Mannington, Marion County, West Virginia.
2. At the time this action was
heard, the plaintiffs' eldest child, Aaron Jones (hereafter Aaron),
was eleven years old and, if he attended public school, he would have been in
the sixth grade at Mannington Middle School.
3. Defendant West Virginia State
Board of Education, more properly called the West Virginia Board of Education
(hereafter the State Board), is a constitutional body charged with
the general supervision of West Virginia's public schools and with making rules
to implement the laws and policies of the State relating to education.
4. The State Board's supervisory
role encompasses extracurricular activities, including band and interscholastic
athletics, such as the wrestling program at Mannington Middle School.
5. Defendant Dr. David Stewart
(hereafter Superintendent Stewart) is West Virginia's Superintendent
of Schools. As such, he is the chief executive officer of the State Board and
bears responsibility for the general supervision of West Virginia's public schools,
county superintendents and county boards of education. W. Va. Code § 18-3-3.
6. Defendant Marion County Board
of Education (hereafter the Marion County Board) is an elected body
responsible for the supervision and control of the educational system in Marion
County, which includes the Mannington Middle School. W. Va. Code §§ 18-5-1
7. Defendant Thomas Long is
the Superintendent of Schools for Marion County, West Virginia. As such, he is
the chief executive officer of the Marion County Board and is charged with executing,
under the direction of the State Board, all of its educational policies. W. Va.
Code § 18-4-10.
8. Defendant West Virginia Secondary
School Activities Commission (hereafter WVSSAC) is a quasi-public
body, established pursuant to West Virginia Code section 18-2-25, to whom county
boards of education may delegate the authority to control, supervise and regulate
band activities and interscholastic athletics for the secondary schools in their
respective counties. W. Va. Code § 18-2-25. Such authority remains subordinate
to the overriding supervisory powers of the State Board.
9. The Marion County Board has
exercised the statutory option of delegating to the WVSSAC the authority to control,
supervise and regulate interscholastic athletics for the public schools in Marion
10. West Virginia provides parents
with the option of having their children home schooled, subject to certain conditions
and restrictions. W. Va. Code § 18-8-1(c). (See
11. Since the time, at age six,
when Aaron became subject to the State's compulsory school attendance laws, the
plaintiffs have availed themselves of the home schooling option. This choice
was based on a variety of reasons, including religious and moral concerns.
12. The plaintiffs' have complied
with the requirements to notify the Marion County Board or its superintendent
their intent to home school and have submitted the requisite plan of instruction.
13. The plaintiffs' children
receive instruction from plaintiff Christie Jones (hereafter individually Mrs.
Jones), who utilizes a structured Christian curriculum produced commercially
by the A Beka Book Company of the Pensacola Christian College.
14. The program of instruction
includes testing in each subject every nine weeks. Every nine weeks Mrs. Jones
uses the A Beka program to generate a detailed progress report for each child.
Mrs. Jones also maintains portfolios of each child's school work for the academic
15. Pursuant to West Virginia
Code section 18-8-1(c)(2)(D), home schooled children must undergo an annual academic
assessment and submit the results to the county superintendent. This assessment
requirement may be met through several different mechanisms, which include taking
a nationally normed standardized achievement test or through a portfolio review
of the student's work by a state-certified teacher.
16. In general, the State's
interest in the home schooled child's academic performance is satisfied if the
child's score in the required subjects is in or above the fiftieth percentile (See
on the standardized test or, if below the fiftieth percentile,
the result represents an improvement over the previous year. The academic standards
are also met if, upon review of the child's portfolio of work, a certified teacher
provides a narrative report verifying that the child's academic progress is in
accordance with that child's abilities.
17. Dr. Edwina Pendarvis, who
appeared as an expert for the plaintiffs, testified that a teacher conducting
a portfolio review would be able to give the student a grade.
18. For the past three years,
the plaintiffs have elected to satisfy the progress review requirements of the
schooling statute by having Aaron participate in standardized testing.
19. Aaron's performance on said standardized tests has remained above the
20. In or about the spring of
2002, Aaron decided that he would like to participate on the Mannington Middle
School wrestling team. The plaintiffs supported him in this goal and made inquiries
of school officials as to whether Aaron could join the team.
21. Rick Rinehart, the wrestling
coach at Mannington Middle School, and Mike Hays, the school's activities director,
informed the plaintiffs that they had no objection to Aaron joining the team.
However, Mike Hays advised the plaintiffs that Aaron's participation on the team
would have to be approved by the WVSSAC.
22. The WVSSAC refused to allow
Aaron to participate on the Mannington Middle School wrestling team on the ground
that Title 127, Series 2, section 3.1 of the West Virginia Code of State Regulations
(hereafter WVSSAC Rule 127-2-3.1") restricts participation in interscholastic
athletic activities to students who are enrolled on a full- time basis in a WVSSAC-member
school. (See footnote 3)
23. The WVSSAC regulations do
not reference home schooled children.
24. According to the testimony
of Mike Hayden, Executive Director of the WVSSAC (hereafter Director Hayden),
membership in the WVSSAC is not open to individuals or home schooled families.
25. The decision by the WVSSAC
to refuse to allow Aaron to wrestle for Mannington Middle School because he is
not enrolled in a member school was subsequently
upheld, both in rationale and in result, by Superintendent Stewart.
26. By correspondence, dated
September 16, 2002, the plaintiffs sought an appeal to the WVSSAC Board of Appeals
to challenge the decision that Aaron was not eligible for the Mannington Middle
School wrestling team.
27. By correspondence, dated
September 23, 2002, Director Hayden advised the plaintiffs that the policies
of the WVSSAC preclude the WVSSAC Board of Appeals from hearing an eligibility
appeal by a student who is not enrolled in a member school. Director Hayden further
informed the plaintiffs that the only way Aaron would be permitted to wrestle
would be if he enrolled as a full-time student at Mannington Middle School.
28. The original purpose behind
the enrollment rule was to prevent one school from recruiting athletes from another
school. This purpose has no application to the facts of this case.
29. The plaintiffs ultimately
filed this action and, on January 14, 2003, a preliminary injunction was granted
that allowed Aaron to wrestle on the Mannington Middle School team during the
season that began on December 14, 2002 and concluded on February 1, 2003.
30. Under the current policy
of the WVSSAC regarding academic standards for participation in interscholastic
athletics, which is set forth at Title 127, series 2, section 6 of the West Virginia
Code of State Regulations, a student must do passing work in the equivalent of
20 periods (4 subjects with full credit toward graduation) per week. Failure
to earn passing marks in four full- credit subjects during a semester renders
a student ineligible to participate in interscholastic athletics for the following
31. The WVSSAC rule, found at
Title 127, series 2, section 6.9 of the West Virginia Code of State Regulations,
requires students to maintain a 2.0 average to participate in interscholastic
athletics. This rule states that it is based upon West Virginia Board
of Education Policy 2436.10 'Participation in Extracurricular Activities.' 32
32. Home schooled students are
permitted to participate in a public school's band activities as long as those
students enroll in a band class.
33. Home schooled children can
participate in band activities even if they fail to satisfy the academic eligibility
requirements set forth in Title 127, series 5, section 3.1 of the West Virginia
Code of State Regulations. These are precisely the same as the eligibility requirements
for interscholastic athletics , which are set forth at Title 127, series 2, section
6.1 of the West Virginia Code of State Regulations, i.e.
, passing work
in the equivalent of 20 periods per week.
34. No evidence was presented
that the participation of home schooled children in a public school's band has
had any ill effects on the school or any of the students.
35. Physical education is part
of the high school curriculum. There is a one-credit requirement, according to
William Cameron Walton, principal of South Charleston High School.
36. No evidence was presented
that Aaron's participation on the Mannington Middle School wrestling team had
any ill effects on Aaron, the school or any of the students.
37. To the contrary, Mrs. Jones
testified that Aaron was aware that he would not be allowed to wrestle if his
academic performance slipped. This gave him motivation to remain focused on his
38. Aaron's father testified
that, as a member of the Mannington Middle School wrestling team, Aaron 's physical
conditioning improved, he made new friends and he enjoyed a team environment
where the members were supportive of one another.
39. Rick Rinehart, the Mannington
Middle School wrestling coach, testified that wrestling was a positive experience
for Aaron, who worked hard and improved his skills. He reported that there was
no reduction in the level of support for the wrestling team, nor were there any
discipline problems with Aaron or other team members, as a result of Aaron's
presence on the team. He also testified that he would like to see Aaron return
to the team. 40
40. Aaron also testified and
explained that his teammates did not treat him differently, that he had fun,
and that he made friends on the team.
41. According to the testimony
of Mike Hays, the Mannington Middle School's activities director, there are certain
basics a school will have to have in place in order to field an athletic team.
The costs for those basics must be met whether or not there is a home schooled
student on the team.
42. Additional money for athletics
comes through gate receipts, donations and fund-raising activities.
43. Pursuant to the pertinent
provisions of West Virginia Code section 18-8-1(c)(3), home schooled children
may, with the approval of the county board of education, attend any class
offered by the county board[.]
44. No evidence was presented
that such ad hoc
participation in public school classes by students who
are otherwise home schooled has any adverse impact on such home schooled students,
their public school classmates or the school in general.
45. According to correspondence,
dated February 10, 2003 from Bob Mitts, Underwriting Manager at the Board of
Risk and Insurance Management, the participation of home schooled children in
school-sponsored activities does not limit the liability coverage that would
46. The WVSSAC is a member of
the National Federation of State High School Associations (hereafter the
Federation), which has produced a document entitled The Case for
High School Activities. Said document argues for high school activity programs,
such as interscholastic athletics, on the grounds that such activities promote
citizenship and sportsmanship . . . instill a sense of pride in community, teach
lifelong lessons of teamwork and self-discipline and facilitate the physical
and emotional development of our nation's youth. Citing a number of studies
and reports from professional journals, the Federation makes the following three
key points in support of their position:
a. These activities constitute
an extension of
a good educational program, noting that the students who engage in such
activities tend to have higher grade-point averages, better attendance
records, lower dropout rates and fewer discipline problems than students generally.
b. They are inherently
educational in that they provide valuable lessons for practical situations
- teamwork, sportsmanship, winning and losing, and hard work. The participants learn
self- discipline, build self-confidence and develop skills to handle competitive
situations, all of which contributes to the development of responsible
adults and good citizens.
c. Participation in high
school activities is often a predictor of later success - in college, a career
and becoming a contributing member of society.
47. The plaintiffs raise the
following four issues:
a. By denying Aaron the right
to participate in extracurricular activities, such as wrestling, the defendants
are breaching Aaron's fundamental constitutional right to a thorough and efficient
education and are further breaching their statutory duty to provide home schooling
families with resources to assist in their home schooling efforts;
b. The defendants are violating
the doctrine of unconstitutional conditions by conditioning access to a public
right, benefit or privilege, i.e.,
participation in interscholastic athletics,
upon relinquishment of the plaintiffs' constitutional right to home school their
c. The defendants' actions in
barring home schooled children from participation in
interscholastic athletics violates the principles of equal protection because
there is neither a compelling reason nor a rational basis for such treatment.
Further, the defendants violate their statutory and regulatory duty to afford
every child in West Virginia equal educational opportunities and their regulatory
duty to implement extracurricular programs in an equitable manner; and
d. The WVSSAC has breached its
duty to promulgate reasonable rules and regulations, and apply same in a reasonable
fashion, because the defendants attempt to justify barring home schooled students
from interscholastic athletics primarily on the basis of maintaining academic
standards. However, the defendants do not offer individual home schooled children
the opportunity to demonstrate that their level of academic achievement is correlative
to that of their public school counterparts.
1. The statute that permits
students to be home schooled, West Virginia Code section 18-8-1(c), neither
explicitly nor implicitly grants home schooled students the right to participate
in interscholastic sports. This does not conclude the inquiry.
2. There is no dispute that
the provisions of Article XII, Section 1 of the West Virginia Constitution
afford West Virginia's children the right to a thorough and efficient education.
3. The plaintiffs are, in effect,
asking this court to expand the scope of the constitutional right to a thorough
and efficient education to include a right to participate in interscholastic
sports. This cannot be done under current controlling law. Admittedly, the Supreme
Appeals of West Virginia (hereafter West Virginia Supreme Court)
has previously stated that a thorough and efficient system of schools
. . . develops, as best the state of education expertise allows, the minds, bodies and
social morality of its charges to prepare them for useful and happy occupations,
recreation and citizenship, and does so economically. Pauley v. Kelly,
255 S.E.2d 859, 877 (W. Va. 1979)(emphasis added). Subsequently, this definition
was cited with approval in Randolph County Board of Education v. Adams, 467
S.E.2d 150, 158 (W. Va. 1995). Participation in interscholastic sports certainly
fosters some of the stated objectives of the State Board, such as the opportunity
to develop the ability to assess self and the total environment; . .
. to live a healthy lifestyle; the ability to participate in recreational activities;
. . . and a sense of responsibility to facilitate compatibility with others
in society. West Virginia Code of State Regulations, Title 126, series
42, section 4.
all of the foregoing the West Virginia Supreme Court has expressly ruled that [p]articipation
in nonacademic extracurricular activities, including interscholastic athletics,
does not rise to the level of a fundamental or constitutional right under article
XII, § 1 of the West Virginia Constitution. Bailey v. Truby,
174 W. Va. 8, 23, 321 S.E.2d 302, 318 (1984).
light of the West Virginia Supreme Court's disposition of this issue in Bailey, the
plaintiffs are unable to establish that Aaron has a fundamental constitutional right
to participate in interscholastic sports.
for Home Schooling Families
6. The plaintiffs also argue
that the wrestling program at Mannington Middle School is an available educational
resource and that, by denying Aaron access to same, the defendants are breaching
their statutory duty under West Virginia Code section 18-8-1(c)(3).
7. In pertinent part, West Virginia
Code section 18-8- 1(c)(3) requires the county superintendent to offer
such assistance, including textbooks, other teaching materials and available
resources, as may assist the person or
persons providing home instruction subject to their availability.
8. There is no dispute that
participation in interscholastic athletics offers an individual
student opportunities to learn important life lessons and expands the educational
experience beyond the four walls of the traditional classroom. Therefore, it
is arguable that the coaching and facilities that are available to a student
athlete could be considered an available educational resource within the meaning
of the aforementioned statute.
9. The view that coaching and
facilities are an educational resource within the meaning
of West Virginia Code section 18-8-1(c)(3) is supported by the fact that, as
the plaintiffs correctly note, wrestling may provide Aaron with scholarship opportunities
at the college level.
10. The defendants have breached
their statutory duty under the above-quoted portion
of West Virginia Code section 18-8-1(c)(3) by failing to make interscholastic
sports available to Aaron.
of Unconstitutional Conditions
11. The plaintiffs claim that
the defendants are conditioning access to a public right, benefit
or privilege upon the plaintiffs' relinquishment of their fundamental constitutional
right to control Aaron's education. In other words, they have been advised that
the only way Aaron will be able to participate on the Mannington Middle School
wrestling team is if they abandon their home schooling efforts and allow Aaron
to enroll in Mannington Middle School as a full-time student.
2. The plaintiffs argue that
restrictions on their right to home school Aaron must
the compelling state interest test.
13. This argument overstates
the case. Choices have consequences. The plaintiffs' have
chosen to exercise the right to home school their children. A collateral consequence
is that membership on a school wrestling team is not readily available to their
14. Membership on a wrestling
team is not analogous
to rights such as entitlement to receive
unemployment benefits. Sherbert v. Verner, 374 U.S. 398 (1963)(denying
unemployment benefits where appellant could not work on Saturdays due to religious
constraints improperly impinged on free exercise of appellant's religion). The
court is unpersuaded that the cases relied upon by the plaintiffs are sufficiently
on point to assist the plaintiffs in asserting the unconstitutional conditions
doctrine, which is a questionable analytical tool in any event. See, Dolan
v. City of Tigard, 512 U.S. 374, 407 n.12 (1994)(In which Justice Stevens,
writing a dissent that was joined by Justices Blackmun and Ginsberg, correctly
noted, in pertinent part, that although the doctrine has a long history it
has suffered from notoriously inconsistent application; it has never been
an overarching principle of constitutional law that operates with equal force
regardless of the nature of the rights and powers in question.)
15. The doctrine of unconstitutional
conditions does not operate to invalidate the exclusion
of home schooled children from interscholastic athletics.
Basis Test for the Equal Protection Claim
16. The plaintiffs claim that
the exclusion of home schooled students from interscholastic
sports teams, pursuant to WVSSAC Rule 127-2- 3.1 violates the students' equal
protection rights under Article III, Sections 10 and 17 of the West Virginia
Constitution. This is an issue that was left unresolved by the Supreme Court
of Appeals of West Virginia (hereafter West Virginia Supreme Court)
in Gallery v. West Virginia Secondary Schools Activities Comm'n, 205 W.
Va. 364, 518 S.E.2d 368 (1999).
17. As noted above, the West
Virginia Supreme Court has specifically held that [p]articipation
in nonacademic extracurricular activities, including interscholastic athletics,
does not rise to the level of a fundamental or constitutional right under article
XII, § 1 of the West Virginia Constitution. Bailey v. Truby,
174 W. Va. 8, 23, 321 S.E.2d 302, 318 (1984).
18. Accordingly, the defendants
are required to demonstrate only a rational basis for excluding
home schooled students from participation in public school sports programs, not
a compelling interest. Bailey v. Truby, supra. See also, Harris
v. West Virginia Secondary School Activities Comm'n, 679 F.2d 881 (4th Cir.
19. The defendants identify
the following justifications, which they assert provide a rational
basis for WVSSAC Rule 127-2-3.1and the resultant exclusion of home schooled students
from school-sponsored sports:
a. The State's interest in promoting
academics over athletics;
b. Concerns over the ability
of public school coaches and administrators to effectively maintain discipline
with regard to home schooled students;
c. The State's interest in allocating
scarce funding formula dollars; and
d. Considerations of school
community and school spirit.
Academics over Athletics
20. The defendants assert
that the State's interest in promoting academics over sports is
implemented through rules that make a student's eligibility for sports contingent
upon achieving certain academic standards. They argue that the academic progress
of a home schooled child is only measured once a year and, as a result, the academic
eligibility of home schooled students and public school students would be measured
by a different yardsticks, to the potential detriment of the public school students.
21. As the plaintiffs correctly
note, the defendants have not afforded any home schooled
students the opportunity to demonstrate that their level of academic achievements
are comparable to their public school counterparts.
22. The different yardsticks
for measuring academic achievement have not prevented the
successful involvement of home schooled students in public school bands.
23. Prioritizing academics over
is a legitimate State goal. However,
the magnitude of the defendants' response to the perceived inequities in the measurement
of academic eligibility between public school students and home schooled students
is excessive. This court cannot conclude that the legitimate goal of prioritizing
a rational basis for the total exclusion of home schooled students from interscholastic
sports that results from WVSSAC Rule 127-2-3.1.
24. In a similar vein, the
defendants have expressed concern that the parents of some students
with poor academic performance might withdraw those students from public school
home schooling them as a strategic ploy to maintain their athletic eligibility.
This is a sad but
probably realistic assessment that some parents may prioritize sports over academic
25. While preventing such manipulation
of the system may well be a legitimate objective,
the court again concludes that this potential problem does not provide a rational
basis for the blanket prohibition that currently keeps home schooled children
out of school-sponsored sports.
26. As a corollary to their
concerns about maintaining academic standards, the defendants
also argue that there is no avenue for disciplining a home schooled student except
on the playing field. Thus the defendants concede that there are, in fact, disciplinary
mechanisms at their disposal with respect to home schooled students who engage
in school sports.
27. There is nothing before
this court that would suggest that permitting home schooled
children to participate in school sports would undermine the ability of coaches
or school officials to maintain discipline among public school students.
28. There is no evidence that
participation by home
schooled children in band activities
has impaired the ability of band directors and school officials to maintain discipline
over either the home schooled students or the public school students.
29. There is no evidence that
Aaron's participation on the Mannington Middle School wrestling
team caused disciplinary concerns.
30. Maintaining discipline may
be a legitimate objective. However, as a factual matter
there does not appear to be any rational basis for barring home schooled students
from school sports where the defendants have conceded the existence of disciplinary
mechanisms that could be applied to any home schooled student who joins a school
31. The exclusion of home schooled
students that flows from WVSSAC Rule 127-2-3.1
fails the rational basis test and the court must conclude that the resultant
distinction between public school students and home schooled students violates
equal protection principles.
Scarce Educational Dollars
32. The defendants claim that
the State's interest in allocating scarce funding formula dollars
provides a rational basis for the Board's, and the WVSSAC's, decision to bar
home schooled students from athletic programs. They argue that every educational
dollar spent represents hard choices in these difficult times and that every
dollar spent on athletics is a dollar that is not available for academics and
academic enrichment programs. They correctly note that athletic programs involve, inter
alia, costs for facilities, maintenance, coaches, officials, uniforms and
33. These assertions regarding
the financial impact of athletic programs have no real bearing
on the issue before this court because the financial commitment required of any
school that offers an athletic program exists independently of whether there
is any participation by home schooled students.
34. The defendants' stated concern
with the cost of
athletic programs provides an interesting
and perhaps illuminating counterpoint to their assertions that the State's interest
in promoting academics outweighs its interest in promoting athletics. While it
is true that academics are, and should be, the primary mission of the State's
educational system, it is also true that interscholastic sports are valuable
and valued, as well. If this were not so, the money currently spent on school
athletic programs each year would be devoted to more academically-oriented concerns.
35. The choice to expend limited
educational dollars to develop and implement athletic
programs in our public schools has already been made. The propriety of this choice
is not at issue herein. However, it is disingenuous for the defendants to rationalize
the exclusion of home schooled students from those programs on the basis of money.
36. The question to be answered
is whether the defendants can point to a rational basis
for this exclusion of home schooled children from the on- going programs that
the public schools have already decided to fund. There is no evidence before
this court regarding increased costs, if any, that resulted from Aaron's participation
on the Mannington Middle School wrestling team. Nor is there evidence of increased
costs from the hypothetical involvement of a home schooled student on any other
public school team. The financial impact of a home schooled child's involvement
would be de minimis, at best (or worst).
37. By contrast, the plaintiffs
established that 1) most, if not all, funding for interscholastic
athletics is generated through ticket sales and other fund-raising activities
in which home schooling families can participate, 2) the bulk of the expenses
related to fielding an athletic team, such as the costs for the facilities and
the salaries for the coaching staff, are fixed at the time a school decides to
field a team and will not be increased by a home schooled child's participation,
and 3) home schooling families, through their federal, state and local tax dollars,
make the same contribution to public education in West Virginia as does any other
West Virginia taxpayer.
38. Insuring the wise expenditure
dollars is clearly a legitimate governmental
objective. However, there is no rational connection between this legitimate objective
and the ban on home schooled students' involvement in interscholastic athletics.
39. Even if the defendants had
established that there were additional costs incurred by the
school system as the result of participation by home schooled children on a public
school's sports team, this court would again conclude that the blanket prohibition
is an excessive response and, as such, is not rationally related to the objective.
40. Similar financial concerns
have not prevented home schooled students from participating
in band, which is also an extracurricular activity. There was no evidence that
the involvement of home schooled students in band has created any financial hardships
for the schools sponsoring bands. Rather, the testimony of Mary Anne Hughes,
a parent from New Martinsville whose home schooled children participated in Magnolia
High School band, reflected that her family had been enthusiastic supporters
of the band and its activities. They were band boosters, they raised money for
the band, and they chaperoned band trips.
Spirit and Sense of Community
41. The defendants argue that
considerations of school community and spirit provide
a rational basis for the restriction of athletic programs. They assert that a
school's athletic programs serve not only to unify the members of its sports
teams but also the whole student body. They also argue that a home schooled student
has rejected membership in the school's student body and, as such, is not a logical
representative of the school in athletic events.
42. There is no evidence that
Aaron's participation on the Mannington Middle School wrestling
team disrupted the school's sense of community. Nor is there any evidence that
the student body or his teammates failed to be supportive of Aaron's efforts
on the team's behalf.
43. The testimony adduced during
the February 13
hearing gives rise to concern that the
defendants' reluctance to open their sports programs to home schooled students
reflects something of an insular attitude. Contrary to the defendants' assertion,
the home schooled child has not rejected public education. Rather, children such
as Aaron are being educated in the manner chosen by their parents and approved
by the State through the appropriate county board of education. Closing the doors
to their participation in sports further perpetuates the social isolation that
is an obvious detriment to home schooling.
44. There is cause to question
whether the defendants' refusal to embrace the participation
of home schooled students in interscholastic athletics may flow, in some degree,
either consciously or unconsciously, from the insular attitude that emerged from
time to time during the course of the testimony on February 13. This gives rise
to questions about whether terms such as school spirit and sense
of community are merely socially acceptable terms that serve to disguise
or legitimate this insular attitude.
45. In this context the court
cannot conclude that the promotion of school spirit and sense
of community constitutes a legitimate governmental objective.
46. Even if this were a legitimate
objective in the context of this case, the court does not
conclude that this provides a rational basis for excluding home schooled students
from joining their public school counterparts in athletic competition. There
is simply no evidence that a student body will not rally behind any member of
a team wearing their school's uniform.
47. In this same vein, the defendants
argue that schools rely upon members of athletic teams
to provide role models and leaders for the student body. While this is a laudable
sentiment it is not a legitimate governmental interest and does not provide a
rational basis for excluding home schooled children from the benefits of team
membership. In fact, recent history has shown us more than one example of a stellar
West Virginia athlete whose behavior off the playing field has been, literally,
criminal. There is nothing before this court that demonstrates that athletic
leadership potential necessarily go hand in hand.
48. There is no dispute that
home schooled students are allowed to participate in extracurricular
band activities. There is no evidence that such participation has destroyed school
spirit or disrupted the sense of community. The only cited difference between
band and school sports, aside from participation vel non by home schooled
students, is that the home schooled student must enroll in band class, which
is considered an academic subject. The court finds that enrollment in a single
class is a de minimis distinction that does not support treating home
schooled students who want to participate in extracurricular sports differently
from home schooled students who want to participate in extracurricular band.
By extension, it does not support treating home schooled students who can qualify
for participation on a school team differently from their public school counterparts.
49. The plaintiffs argue that
the WVSSAC has breached both its duty to promulgate reasonable
rules and regulations and its duty to apply the same in a reasonable fashion.
50. As an initial matter, the
court will address the fact that the WVSSAC cites Cape v.
Tennessee Secondary School Athletic Association
, 563 F.2d 793, 795 (6th Cir.
1977), (See footnote 4)
the proposition that the plaintiffs' remedy, if any, should more appropriately
be directed to activity within the framework of the association itself, a framework
which is not shown to be inadequate to resolve issues of this sort. In
this case, the framework of the WVSSAC has been shown to be inadequate to resolve
the issues pending before this court. The plaintiffs are foreclosed from membership
in the WVSSAC. Further, they were expressly advised that they were not entitled
to bring Aaron's eligibility issue before the WVSSAC Board of Appeals. Therefore,
court rejects the WVSSAC's suggestion that 'the same philosophy [employed by
] should be adopted here.
51. The WVSSAC cautions this
court against interfering in its internal affairs. Quoting
from Shelton v. N.C.A.A.
, 539 F.2d 1197, 1198 (9th Cir. 1976), it further
reminds the court 'that it is not judicial business to tell a voluntary
association how best to formulate or enforce its rules.'
52. The Shelton
employed the same rational basis test that is being brought to bear
on the plaintiffs' equal protection claims in this case. Shelton,
F.2d at 1198 ([W]e must examine the rule to determine whether it rationally
furthers some legitimate purpose.)
53. As noted, under equal protection
analysis, the draconian WVSSAC Rule 127-2-3.1
fails to rationally
further some legitimate purpose.
54. As the WVSSAC has conceded,
any presumption of validity that attaches to its rules
and regulations must yield to a finding that a given rule violates constitutionally
55. Even if the offending rule
were deemed to be constitutional, the plaintiffs still urge
that it is not a reasonable rule. In so arguing they rely upon Hamilton v.
Secondary Schools Activities Commission
, 386 SE2d 656 (W. Va. 1989).
56. The Hamilton
reviewed the WVSSAC's practice of determining a student's
eligibility based on the number of years of attendance. This rule is aimed at
preventing the practice of red-shirting whereby a student is held
back for a year to allow such student to develop and mature physically with an
eye to improved athletic performance. The appellant in Hamilton
ninth grade due to legitimate academic concerns. However, the WVSSAC refused
to look behind the reasons for holding him back.
57. The Hamilton
stated that [w]hat makes the scheme unreasonable is the Commission's
refusal to consider the circumstances surrounding a student's being held back.
There is no inquiry into actual intent
to red-shirt. Hamilton
386 S.E.2d at 658. Noting that the appellant was challenging the substantive
reasonableness of the Commission's rule, the Court determined that, in
the context of the appellant's case, the Commission's rule was not within
the Commission's legitimate authority to promulgate 'reasonable' regulations
for school sports. Hamilton
, 386 S.E.2d at 659.
58. As in Hamilton
WVSSAC has cast its net too wide. Hamilton
, 386 S.E.2d at
658. The legitimate objectives of the WVSSAC could have been accomplished
in a more reasonable and less restrictive way. Hamilton
, 386 S.E.2d
59. Therefore, the court must
conclude that WVSSAC Rule127-2-3.1 is not a reasonable
60. The plaintiffs also argue
that the WVSSAC has created a number of exceptions to its
own eligibility rules under which students may participate in athletics at a
school they do not attend. The defendants acknowledge that there are certain
exceptions but assert that the plaintiffs have overstated or misstated them.
The court need not address the accuracy of the plaintiffs' assertions in this
regard. Rather, it is sufficient for purposes of this analysis that the WVSSAC
has been able to craft rules to meet circumstances where application of a blanket
rule would be unfair. For example, exceptions from the attendance requirement
are available to students at feeder schools where the feeder schools do not offer
a particular sport. Title 127, series 2, section 3.2.1 of the West Virginia Code
of State Regulations.
61. The significance of the
foregoing is that it proves that the system has the inherent flexibility
to deal fairly with exceptional circumstances. It emphasizes the fact that the
total ban at issue herein is overkill. More finely tailored rules would meet
the legitimate purposes this draconian ban is meant to serve.
the reasons discussed above, the court concludes 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. Therefore, the
defendants' policy of exclusion for home schooled children cannot continue.
Each of the foregoing grounds provides an independent, distinct and alternative
basis for ruling in favor of the plaintiffs.
plaintiffs seek declaratory relief, injunctive relief and extraordinary relief
in the form of writs of prohibition and mandamus. In light of the foregoing,
it is hereby ORDERED
1. Pursuant to West Virginia
Code section 29A-4-2, a court may declare a rule invalid if it violates constitutional
provisions or exceeds the statutory authority or jurisdiction of the agency or
is arbitrary and capricious. Title 127, series 2, section 3.1 of the West Virginia
Code of State Regulations is hereby declared invalid on any or all of the grounds
that 1) it violates equal protection, 2) exceeds the statutory authority of the
West Virginia Board of Education and the West Virginia Secondary Schools Activities
Commission, and 3) is arbitrary and capricious in that it is overly broad.
2. The defendants are enjoined
from violating the plaintiffs' statutory right of access to available educational
resources, which includes participation on an existing school athletic team;
3. The defendants are enjoined
from violating the
equal protection provisions of the West Virginia Constitution by enforcing
the enrollment rule that excludes home schooled students from interscholastic
4. The defendants are enjoined
from failing and refusing to comply with their statutory duty to promulgate and
enact reasonable rules for the regulation of interscholastic athletics;
5. A writ of prohibition is
directed to the defendants 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;
6. The plaintiffs have met the
three prerequisites for issuance of a writ of mandamus. Therefore, a writ of
mandamus is issued
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
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.
objection of any party aggrieved by entry of this order is noted and preserved.
Clerk is hereby DIRECTED to forward an attested copy of this Order to
all counsel of record, including counsel for the amicus. There being nothing
further, this action shall be DISMISSED and removed from the docket of
pertinent portion of the statute was formerly W. Va. Code 18-8-1, Exemption
The statutory changes took effect in March 2003, so the memoranda and
the arguments of the parties refer to the earlier code section. The statutory
changes do not have any substantive bearing on the disposition of this case.
the statutory amendment took effect in March 2003, the fortieth percentile
oral argument in an unrelated case before the Supreme Court of Appeals of West
Virginia, the State Board represented to the Court 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. State ex rel. Lambert by Lambert v. West Virginia
State Board of Education
, 447 S.E.2d 901 (W. Va. 1994). None of the parties
addressed this apparent discrepancy between these representations and the practices
currently in place.
not identified as such by the WVSSAC, this is a very brief per curiam
arising out of a challenge to the rules governing how female students played