county superintendent or a designee shall 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. Any child receiving
home instruction may upon approval of the county board exercise the option to
attend any class offered by the county board as the person or persons providing
home instruction may consider appropriate subject to normal registration and
W. Va. Code § 18-8-1(c)(3).
There is no suggestion in the record before this Court that Aaron Jones has failed to meet any statutory requirement for home schooling. In fact, all indications are that he is a very good student, that he would likely excel academically if enrolled in a public school and that he enjoyed every minute of the brief period in which he was permitted to wrestle for Mannington Middle School by virtue of a circuit court injunction. There is no evidence whatsoever that he disrupted the team's dynamic or had difficulty getting along with his team mates.
As expressly sanctioned by West Virginia law, Aaron's parents have opted to privately school their child. They are in full compliance with West Virginia law governing provision of a non-public education; indeed, they are in as full compliance with applicable West Virginia law for the education of a child as the parents who send their children to the local public middle school and the local private religious school, Fairmont Catholic Grade School. This Court has previously found that public and parochial school students may rationally be treated differently in the allocation of state funds because they are not similarly situated as the parochial school student has rejected a free public education. Janasiewicz v. Board of Educ. of Kanawha County, 171 W. Va. 423, 426, 299 S.E.2d 34, 37-38 (1982). Were Aaron simply being treated differently than publically schooled students, I would agree with the majority in this matter. However, Aaron is being treated differently than other non- publically educated students in Marion County under the WVSSAC Rules. Where both educations are expressly sanctioned under West Virginia law as acceptable non-public educations, I can find no rational basis to treat those children enrolled in private or parochial schools in Marion County differently from those children being home-schooled in Marion County so long as legitimate academic concerns can be met _ as they easily can for both non- public school students.
There is no constitutional right to participate
in public school athletics inherent in the law. See Bailey v. Truby, 174
W. Va. 8, 23, 321 S.E.2d 302, 318 (1984) (noting [p]articipation in
nonacademic extracurricular activities, including interscholastic athletics,
does not rise to the level of a fundamental or constitutional right under
the West Virginia Constitution). See, also, Hart v. National Collegiate
Athletic Association, 209 W. Va. 543, 550 S.E.2d 79 (2001). Thus, while the
importance of participation for a home-schooled child in public school athletics
requires scrutiny as a matter of common law, such participation does not
rise to the level of a fundamental or constitutional right under Article XII, § 1
of the West Virginia Constitution. Bailey, 174 W. Va. at 23, 321
S.E.2d at 318. Nor does it implicate a liberty interest. Participating in athletics
is a privilege. Petitioners herein may, and should, develop appropriate rules
and procedures to condition the exercise of this privilege so long as such rules
and procedures have a rational basis. Bailey, supra. See Harris
v. West Virginia Secondary School Activities Comm'n., 679 F.2d 881 (4th Cir.
The ultimate issue herein is not whether a home-schooled child has a right to participate in public school athletics. It is instead whether one non-publically educated child has the right to the same treatment as another similarly situated non-publically educated child under the statutes, rules and procedures of this State. Whether the statutes, rules or procedures involve athletics or some other matter, justice requires that we not discriminate in favor of one child over another.
Here, without a compelling interest, much
less a veritable rational basis, West Virginia has created a disparity in the
treatment of such children by enacting rules which allow certain non-public school
students to participate on public school athletic teams. See Bailey, supra.
Under the WVSSAC feeder school rules, W. Va. C.S.R. § 127-2-3.2 (See
footnote 4) , students
enrolled in a non-public or private/parochial school, may participate on a
public school team where the non-public or private/parochial school and the
public school are both feeder schools to the same public high school. Thus,
if a sixth grade student, such as Aaron, were enrolled in a parochial school
which opted into the WVSSAC and which is located in a county where there is
no parochial high school which is also a WVSSAC member, West Virginia permits
the parochial school student to play on the local public school athletic team.
The only conditions necessary for the parochial school student to participate
is that he or she maintain a requisite 2.00 grade point average and that the
parochial school not field a team in the sport in which the student wishes
to participate. In Marion County, a sixth grade student at Fairmont Catholic
Grade School is eligible to compete on the Mannington Middle
School's wrestling team - a privilege now denied to Aaron. West Virginia law
provides to one non-publically educated student in Marion County what it denies
West Virginia statutory law does not qualitatively distinguish between the non-public education of home schooling and the non-public education of enrolling in a private or parochial school. It is something which, subject to quality standards being met, provides West Virginians with a choice of education. Both non-publically educated students being similarly situated, and West Virginia having chosen to extend to one the privilege of competing, West Virginia must extend the same privilege to the other absent a clear and compelling rational basis not to do so. Otherwise, the majority has attached to the choice of education which this State gives to parents a penalty not otherwise provided by West Virginia law and, I think, not anticipated by the Legislature. (See footnote 5)
The claimed rational bases set forth to this Court for denying a home-schooled student the same privilege to participate in middle school athletics as other non-publically educated children are unpersuasive. The argument that the enrollment requirement ensures academics standards are maintained for participation is a valid and important concern. It is however, not the enrollment which should justify the disparate treatment herein, but rather the ability or inability of Aaron to meet academic standards which should be a bona fide rational basis. (See footnote 6) The mechanism used by the WVSSAC to ensure academic standards being met by an athlete, by its application, automatically excludes home-schooled children from participation, regardless of the actual academic ability of the child. In other words, it has more to do with arbitrarily treating similarly situated children differently than it does with ensuring a requisite educational level being maintained. W. Va. Code § 18-8-1(c)(2)(D) provides for objective bases, i.e., nationally standardized achievement tests, among other tests, to be used to access a home-schooled child's academic progress. Requiring a home-schooled athlete to take and obtain a certain score on such a test meets the important need for academic standards with little, if any, difficultly for the WVSSAC. Arguing, as the WVSSAC has done, that athletes with bad grades could avoid participation restrictions by opting for home-schooling is implausible and speculative. Such situations are easily subject to identification and exclusion just as they would be if the athlete instead opted to move from a public school to a parochial school. Adequate passing of the objective home school or public school test meets this restriction. Moreover, the argument that a home schooled child is not graded on a 4.00 scale fails to recognize that a 2.00 at the local public school may be, and probably is, different from the 2.00 at the local parochial school. (See footnote 7) It is ironic that home-schooled children can participate in public school 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. As noted by Judge Bloom below, these are the same requirements 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 also do not place credence in the purported rational basis for permitting participation by one Marion County non-publically educated student and not another under the so-called feeder rule. This rule holds that the non-publically schooled students who are permitted to participate on the public middle school team will eventually be classmates with their public school teammates when they reach high school. As applied to individuals, it is speculative at best. There is no certainty that a Fairmont Catholic Grade School athlete participating on a public middle school athletic team will attend the same Marion County high school as his teammates. It is just as likely that the Fairmont Catholic Grade School athlete will continue his or her education at the Catholic high school in neighboring Harrison County, as there is no Catholic high school in Marion County for he or she to feed into. Absent more, a home schooled student and a student at Fairmont Catholic Grade School in Marion County may both be considered possible candidates for the public high school. Both non-public educations may constitute feeder possibilities for the public high school. (See footnote 8)
There is also no rational basis that I can see for treating a home schooled child differently with respect to activities at the public school in which the home schooled child may participate. The home schooled child is permitted to enroll in band class at the local public school. As such, the home schooled child is also eligible to participate in the school's band and participate when the band plays at athletic events, concerts and competitions. The WVSSAC attempts to justify the distinction by arguing that band is a co-curricular, rather than an extra-curricular, activity. The argument goes that participation in band is linked to participation in a specific class offered by the public school. The basis of this argument is a distinction without a difference. Both the band and the athletic endeavors receive public funding, so obviously the decision has been made that both are of importance to the educational experience. Why distinguish between the two with respect to eligibility? What if the home-schooled student took a physical education class at the local public school? Neither the WVSSAC nor the State School Board have put forth a rational response to justify the purported distinction between co-curricular and extra-curricular activities in determining a home-schooled student's eligibility to participate.
Every argument raised by the WVSSAC as a basis for treating the two non-publically educated students differently fails to meet the requirement of being a bona fide rational basis for the different treatment of similarly situated children. They are pretexts. Neither non- publically educated student has an inherent right to play sports at the public middle school. However, where, as here, the State has chosen to extend to one non-publically educated student the privilege to play sports, it must do so for the other. Each child is entitled to equal protection and treatment under the rules and procedures applicable herein. The allowances and changes needed to effect this ability to play and uphold the principles which underlie the conditions for playing, such as academics, are easily met. The barriers relied upon by the State and accepted by the majority as rational bases to prevent an equal opportunity for both non-publically educated students focus unfortunately on inflexible procedures rather than the important policies which underlie them. I therefore dissent. (See footnote 9)